EXHIBIT 10.2
GUARANTY
This GUARANTY, dated as of September 30, 1996, is made by each of the
signatories hereto and each other Person which may from time to time hereafter
become a party hereto pursuant to Section 13 (each, individually, an "Additional
Guarantor", and, collectively, the "Additional Guarantors", and, together with
each of the signatories hereto, each, individually, a "Guarantor", and,
collectively, the "Guarantors"), in favor of Bank of America National Trust and
Savings Association ("BofA"), as administrative agent (in such capacity, the
"Administrative Agent") for the various financial institutions from time to time
parties (collectively, the "Lenders") to that certain Credit Agreement, dated as
of September 30, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among E&S Holdings Corporation, a Delaware
corporation (the "Borrower"), the Lenders, BofA, as Swing Line Lender, as
Fronting Lender and as Administrative Agent for the Lenders, together with
Xxxxxxx Xxxxx Capital Corporation, as Documentation Agent for the Lenders,
Nationsbank, N.A. (South), as Syndication Agent for the Lenders, and the several
financial institutions specifically identified as Co-Agents on the signature
pages thereof, for the ratable benefit of the Secured Creditors (as defined
below).
W I T N E S S E T H:
WHEREAS, (a) pursuant to the Credit Agreement, the Lenders have severally
agreed to make Credit Extensions (such capitalized term, and other capitalized
terms used in these recitals, to have the meanings set forth, or defined by
reference in, Section 1) to the Borrower upon the terms and subject to the
conditions set forth therein and (b) one or more Lenders (including those of its
Affiliates that have appointed the Administrative Agent to act on such
Affiliate's behalf hereunder on terms substantially similar to those set forth
in Article X of the Credit Agreement, including the provisions relating to
exculpation and indemnification therein) may from time to time enter into Swap
Contracts with the Borrower (such Affiliates, together with such Lenders, being
referred to herein as "Secured Creditors");
WHEREAS, each Guarantor is a Subsidiary of the Borrower;
WHEREAS, the proceeds of the Credit Extensions will be used in part to
enable the Borrower to make valuable transfers to the Guarantors in connection
with the operation of their respective businesses;
WHEREAS, pursuant to the Credit Agreement, the Fronting Lender has agreed
to issue Letters of Credit and create Acceptances at the request, and for the
account, of the Borrower and other Account Parties (including the Guarantors);
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the Credit Extensions; and
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WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective Credit Extensions to the Borrower under the Credit
Agreement that the Guarantors shall have executed and delivered this Guaranty to
the Administrative Agent for the ratable benefit of the Secured Creditors;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Credit Extensions to the Borrower
under the Credit Agreement and to induce one or more Secured Creditors to enter
into Swap Contracts with the Borrower, the Guarantors hereby agree with the
Administrative Agent, for the ratable benefit of the Secured Creditors, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings ascribed to them in
the Credit Agreement.
(b) As used herein, "Obligations" means the collective reference to (i)
the unpaid principal of and interest on the Loans and all other obligations and
liabilities (including the Special Facility Obligations and the Guaranteed
Obligations) of the Borrower to the Administrative Agent or any Lender
(including interest accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the Loans and interest accruing at the then
applicable rate provided in the Credit Agreement after the filing of, or which
would have accrued but for the filing or commencement of, any Insolvency
Proceeding relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, that may arise under, out of, or in connection with, the
Credit Agreement, the other Loan Documents, the Letters of Credit, the
Acceptances or any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including all reasonable fees
and disbursements of counsel to the Administrative Agent or to the Lenders that
are required to be paid by the Borrower or any Guarantor pursuant to the terms
of the Credit Agreement or any other Loan Document) and (ii) all obligations and
liabilities of the Borrower to any Secured Creditor, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
incurred, that may arise under, out of, or in connection with, any Swap Contract
or any other document made, delivered or given in connection therewith.
(c) "Guaranty" means this Guaranty, as amended, amended and restated,
supplemented or otherwise modified from time to time.
(d) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guaranty shall refer to this Guaranty as a whole and
not to any particular provision of this Guaranty, and Section references are to
Sections of this Guaranty unless otherwise specified. The word "including" is
not limiting and means "including without limitation".
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(e) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Guaranty. (a) Subject to the provisions of Section 2(b), each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Secured
Creditors and their respective successors, endorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount that can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all reasonable expenses
(including all reasonable fees and disbursements of counsel) that may be paid or
incurred by the Administrative Agent or any Secured Creditor in enforcing or
obtaining advice of counsel in respect of any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guaranty. This
Guaranty shall remain in full force and effect until the Obligations are paid in
full, the Commitments are terminated, the Letters of Credit are terminated or
expired and the Acceptances are matured, notwithstanding that from time to time
prior thereto the Borrower may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor hereunder
without impairing this Guaranty or affecting the rights and remedies of the
Administrative Agent or any Secured Creditor hereunder.
(e) No payment or payments made by the Borrower, any of the Guarantors,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any Secured Creditor from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder, which shall, notwithstanding any such payment or payments other than
payments made by such Guarantor in respect of the Obligations or payments
received or collected from such Guarantor in respect of the Obligations, remain
liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full, the Commitments are
terminated, no Letters of Credit remain outstanding and no Acceptance remain
unmatured.
(f) Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Secured
Creditor on account of its
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liability hereunder, it will notify the Administrative Agent in writing that
such payment is made under this Guaranty for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 5. The provisions of
this Section 3 shall in no respect limit the obligations and liabilities of any
Guarantor to the Administrative Agent and the Secured Creditors, and each
Guarantor shall remain liable to the Administrative Agent and the Secured
Creditors for the full amount guaranteed by such Guarantor hereunder.
4. Right of Set-off. In addition to any rights and remedies of the
Administrative Agent and each Secured Creditor provided by law, if an Event of
Default exists or the Loans have been accelerated, each Guarantor hereby
irrevocably authorizes the Administrative Agent and each Secured Creditor at any
time and from time to time, without prior notice to such Guarantor, any such
notice being waived by such Guarantor to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness, credits or
claims (in each case, in any currency and whether direct or indirect, absolute
or contingent, matured or unmatured) at any time owing by the Administrative
Agent or such Secured Creditor (or any branch or agency thereof) to or for the
credit or the account of such Guarantor against any and all Obligations then due
and payable by such Guarantor hereunder (whether at the stated maturity, by
acceleration or otherwise). Each Secured Creditor agrees to promptly notify the
Guarantor and the Administrative Agent after any such set-off and application
made by such Secured Creditor; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application.
5. Postponement of Subrogation, etc. Each Guarantor hereby expressly
waives, until the Obligations are paid in full, the Commitments are terminated,
all Letters of Credit are terminated or expired and all Acceptance are matured,
any rights which it may now have or hereafter acquire against the Borrower or
any Guarantor by way of subrogation, reimbursement, contribution or setoff by
virtue of any payment made pursuant to the terms hereof or otherwise and any
claim, right or remedy which such Guarantor may now have or hereafter acquire
against the Borrower or any Guarantor that arises from the existence or
performance by such Guarantor of its obligations hereunder, including any claim,
right or remedy of the Administrative Agent or any Secured Creditor against the
Borrower or any security which the Administrative Agent or any Secured Creditor
now have or hereafter acquire, whether or not such claim, right or remedy arises
in equity, under contract, by statute, under color of law or otherwise. If any
amount shall be paid to any Guarantor on account of such subrogation,
reimbursement, contribution, setoff or other rights at any time when all the
Obligations shall not have been paid in full, all the Commitments terminated,
all Letters of Credit terminated or expired and all Acceptances matured, such
amount shall be held by such Guarantor in trust for the benefit of the
Administrative Agent and the Secured Creditors, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such
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Guarantor, be turned over to the Administrative Agent in the exact form received
by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent,
if required) to be (after payment of any amounts payable to the Administrative
Agent pursuant to Section 11.4 and 11.5 of the Credit Agreement) applied by the
Administrative Agent for the ratable benefit of the Secured Creditors in the
following order: first, against Obligations consisting of unpaid and outstanding
interest on the Loans, second, ratably against Obligations consisting of unpaid
and outstanding principal of the Loans, Obligations then due and owing under all
outstanding Swap Contracts and Obligations consisting of unreimbursed and owing
Special Facility Obligations and other similar obligations, third, to
collateralize Obligations consisting of Special Facility Obligations and other
similar obligations, and fourth, against any other remaining Obligations. The
Administrative Agent may assume that no Obligations are outstanding with respect
to Swap Contracts unless it has received written notice thereof in accordance
with this Guaranty prior to any such application by it, and if so notified may
rely upon and deal with the Secured Creditor party to such Swap Contract as to
Obligations thereunder. Any surplus of such cash or cash proceeds held by the
Administrative Agent and remaining after payment in full of all the Obligations
(other than indemnities, costs and expenses that survive termination of a Loan
Document but as to which demand for payment has not then been made), the
termination of all Commitments, the termination or expiration of all Letters of
Credit and the maturity of all Acceptances shall be paid over to the Borrower or
to any other Person notified in writing to the Administrative Agent that may be
lawfully entitled to receive such surplus.
6. Amendments, etc. with Respect to the Obligations; Waiver of Rights.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Administrative Agent or any Secured Creditor may be rescinded by such
party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Secured Creditor, and the Credit Agreement and the other Loan
Documents and any other documents executed and delivered in connection therewith
and the Swap Contracts and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Majority Lenders, as the
case may be, or in the case of any Swap Contract, the Secured Creditor party
thereto) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Secured Creditor for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Secured Creditor shall have any obligation to protect, secure, perfect or insure
any Lien at any time held by it as security for the Obligations or for this
Guaranty or any property subject thereto. When making any demand hereunder
against any of the Guarantors, the Administrative Agent or any Secured Creditor
may, but shall be under no obligation to, make a similar demand on the Borrower
or any other Guarantor or guarantor, and any failure by the Administrative Agent
or any Secured Creditor to make any such demand or to collect any payments from
the Borrower or any such other Guarantor or
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guarantor or any release of the Borrower or such other Guarantor or guarantor
shall not relieve any of the Guarantors in respect of which a demand or
collection is not made or any of the Guarantors not so released of their several
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Secured Creditor against any of the Guarantors. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
7. Guaranty Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Administrative Agent or any Secured
Creditor upon this Guaranty or acceptance of this Guaranty; the Obligations (and
any of them) shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guaranty; and all dealings between the Borrower and any of the Guarantors, on
the one hand, and the Administrative Agent and the Secured Creditors, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guaranty. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that this Guaranty shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the genuineness, legality, validity, regularity or enforceability of the
Credit Agreement, any other Loan Document or any Swap Contract, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Secured Creditor, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) that may at any
time be available to or be asserted by the Borrower against the Administrative
Agent or any Secured Creditor or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or such Guarantor) that
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Obligations, or of such Guarantor under this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent and any
Secured Creditor may, but shall be under no obligation to, pursue such rights
and remedies as it may have against the Borrower or any other Person or against
any collateral security or guarantee for the Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any Secured
Creditor to pursue such other rights or remedies or to collect any payments from
the Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Borrower or any such other Person or any such collateral security, guarantee
or right of offset, shall not relieve such Guarantor of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Administrative Agent and the Secured
Creditors against such Guarantor. This Guaranty shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
each Guarantor and the successors and assigns thereof, and shall inure to the
benefit of the Administrative Agent and the Secured Creditors, and their
respective successors, endorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guaranty shall have
been satisfied by payment in full, the
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Commitments are terminated, the Letters of Credit are terminated or expired and
the Acceptances are matured, notwithstanding that from time to time during the
term of the Credit Agreement and any Swap Contract the Borrower may be free from
any Obligations.
8. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Secured Creditor in connection with an
Insolvency Proceeding of the Borrower or any Guarantor, including upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
9. Payments. Each Guarantor hereby guarantees that payments hereunder will
be paid to the Administrative Agent without set-off or counterclaim in Dollars
at the office of the Administrative Agent set forth in Schedule 11.2 to the
Credit Agreement.
10. Representations and Warranties; Covenants. (a) Each Guarantor hereby
represents and warrants that the representations and warranties set forth in
Article VI of the Credit Agreement as they relate to such Guarantor or the Loan
Documents, if any, to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the Administrative
Agent and each Secured Creditor shall be entitled to rely on each of them as if
they were fully set forth herein.
(b) Each Guarantor hereby covenants and agrees with the Administrative
Agent and each Secured Creditor that, from and after the date of this Guaranty
until the Obligations are paid in full, the Commitments are terminated, the
Letters of Credit are terminated or expired and the Acceptances are matured,
such Guarantor shall take, or shall refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that no violation of any
provision, covenant or agreement contained in Article VII or VIII of the Credit
Agreement, and so that no Default or Event of Default, is caused by any act or
failure to act of such Guarantor or any of its Subsidiaries.
11. Authority of Agent. Each Guarantor acknowledges that the rights and
responsibilities of the Administrative Agent under this Guaranty with respect to
any action taken by the Administrative Agent or the exercise or non-exercise by
the Administrative Agent of any option, right, request, judgment or other right
or remedy provided for herein or resulting or arising out of this Guaranty
shall, as between the Administrative Agent and the Secured Creditors, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and such Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Secured Creditors with full
and valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
12. Notices. All notices, requests and demands pursuant hereto shall be
made in accordance with Section 11.2 of the Credit Agreement, provided that any
such notice, request
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or demand to or upon any Guarantor shall be addressed to such Guarantor in care
of the Borrower in accordance with such Section.
13. Additional Guarantors. Upon the execution and delivery by any other
Person of an instrument in the form of Annex I hereto, such Person shall become
a "Guarantor" hereunder with the same force and effect as if originally named as
a Guarantor herein. The execution and delivery of any such instrument shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Guaranty.
14. Counterparts. This Guaranty may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument. A set of the counterparts of this Guaranty signed by
all the Guarantors shall be lodged with the Administrative Agent.
15. Severability. Any provision of this Guaranty that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
16. Integration; Loan Document. This Guaranty represents the agreement of
each Guarantor with respect to the subject matter hereof and there are no
promises or representations by the Administrative Agent or any Secured Creditor
relative to the subject matter hereof not reflected herein or, to the extent
expressly referred to herein, in the other Loan Documents. This Guaranty
constitutes a Loan Document.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the affected
Guarantor(s) and the Administrative Agent in accordance with Section 11.1 of the
Credit Agreement.
(b) Neither the Administrative Agent nor any Secured Creditor shall by any
act (except by a written instrument pursuant to Section 17(a)), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Secured
Creditor, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Secured Creditor of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy that the Administrative Agent
or such Secured Creditor would otherwise have on any future occasion.
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(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The Section headings used in this Guaranty are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Guaranty shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Secured Creditors and their successors and assigns,
except that no Guarantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
20. WAIVER OF JURY TRIAL. EACH GUARANTOR AND THE ADMINISTRATIVE AGENT (ON
ITS BEHALF AND ON BEHALF OF THE SECURED CREDITORS) HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
21. Submission to Jurisdiction; Waivers. Each Guarantor hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Guaranty or any other Loan Document, or for recognition and
enforcement of any judgement in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof.
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor in care
of the Borrower at the Borrower's address referred to in Section 11.2 of the
Credit Agreement or at such other address of which the Administrative Agent
shall have been notified pursuant to Section 11.2 of the Credit Agreement;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
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22. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
SPALDING & EVENFLO COMPANIES,
INC., a Delaware corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
EVENFLO COMPANY, INC., a Delaware
corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
ETONIC WORLDWIDE CORPORATION,
a Delaware corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer
S&E FINANCE CO., INC., a Delaware
corporation
By /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and CEO
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LISCO, INC., a Delaware corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
LISCO SPORTS, INC., a Delaware
corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
LISCO FEEDING, INC., a Delaware
corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
LISCO FURNITURE, INC., a Delaware
corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
EWW LISCO, INC., a Delaware
corporation
By /s/ W. Xxxxxxx Xxxxxxx
--------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
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ACCEPTED BY:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ANNEX I to
Guaranty
SUPPLEMENT NO. ___ dated as of _____________ ___,
_____ (this "Supplement"), to the Guaranty, dated as of
September 30, 1996 (as amended, supplemented, or otherwise
modified, from time to time, the "Guaranty"), among the
initial signatories thereto and each other Person which from
time to time thereafter became a party thereto pursuant to
Section 13 thereof (each, individually, a "Guarantor", and,
collectively, the "Guarantors"), in favor of Bank of America
National Trust and Savings Association, as Administrative
Agent (in such capacity, the "Administrative Agent") for the
ratable benefit of the Secured Creditors (as defined in the
Guaranty).
W I T N E S S E T H:
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guaranty;
WHEREAS, the Guaranty provides that additional parties may become
Guarantors under the Guaranty by execution and delivery of an instrument in the
form of this Supplement;
WHEREAS, pursuant to the provisions of Section 13 of the Guaranty, the
undersigned is becoming an Additional Guarantor under the Guaranty; and
WHEREAS, the undersigned desires to become a Guarantor under the Guaranty
in order to induce the Lenders to continue to make and maintain Credit
Extensions under the Credit Agreement as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of the
Administrative Agent and Secured Creditors, as follows:
1. In accordance with the Guaranty, the undersigned by its signature below
becomes a Guarantor under the Guaranty with the same force and effect as if it
were an original signatory thereto as a Guarantor and the undersigned hereby (a)
agrees to all the terms and provisions of the Guaranty applicable to it as a
Guarantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Guarantor thereunder are true and correct on and
as of the date hereof. In furtherance of the foregoing, each reference to a
"Guarantor" or an "Additional Guarantor" in the Guaranty shall be deemed to
include the undersigned.
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2. The undersigned hereby represents and warrants that this Supplement has
been duly authorized, executed and delivered by the undersigned and the Guaranty
constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
3. In the event any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired.
4. Without limiting the provisions of the Credit Agreement (or any other
Loan Document, including the Guaranty), the undersigned agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including reasonable attorneys' fees and expenses of the
Administrative Agent.
5. WITHOUT LIMITING THE EFFECT OF SECTION 20 OF THE GUARANTY, THE
UNDERSIGNED AND THE ADMINISTRATIVE AGENT (ON ITS BEHALF AND ON BEHALF OF THE
SECURED CREDITORS) HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS SUPPLEMENT, THE GUARANTY OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
6. Without limiting the effect of Section 21 of the Guaranty, the
undersigned hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Supplement, the Guaranty or any other Loan Document, or for
recognition and enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof.
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the undersigned in care
of the Borrower at the Borrower's address referred to in Section 11.2 of the
Credit Agreement or at such other address of which the Administrative Agent
shall have been notified pursuant to Section 11.2 of the Credit Agreement;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
7. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
8. This Supplement hereby incorporates by reference the provisions of the
Guaranty, which provisions are deemed to be a part hereof, and this Supplement
shall be deemed to be a part of the Guaranty.
9. This Supplement is a Loan Document executed pursuant to the Credit
Agreement and the Guaranty.
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IN WITNESS WHEREOF, the undersigned has duly executed this Supplement to
the Supplement as of the day and year first above written.
[NAME OF ADDITIONAL
GUARANTOR]
By_____________________________
Name:
Title:
ACCEPTED BY:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By________________________________
Name:
Title:
