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EXHIBIT 10.3(e)
GUARANTY
THIS GUARANTY AGREEMENT (herein sometimes called this "Guaranty"), dated
as of December 22, 1995, is executed by DUNJA VERWALTUNGSGESELLSCHAFT MBH, a
German corporation (herein called "Guarantor"), in favor of BANK OF AMERICA
ILLINOIS (f/k/a CONTINENTAL BANK N.A.), as agent (herein called "Agent") for
the benefit of all commercial banking institutions (herein called "Banks") as
are, or may from time to time become, parties to the Credit Agreement (such and
all other capitalized terms being used herein with the meanings set forth in
Article I).
W I T N E S S E T H:
WHEREAS, the Guarantor is a wholly-owned subsidiary of Xxxx Products,
Inc., a Pennsylvania corporation (herein called "Xxxx");
WHEREAS, Xxxx is a wholly-owned subsidiary of IDEX Corporation, a Delaware
corporation (herein called "Borrower"), and as a result, the Guarantor shall
receive substantial and direct benefit from the consummation of the
transactions contemplated under the Credit Agreement (defined below);
WHEREAS, Borrower has entered into that certain Second Amended and
Restated Credit Agreement, dated as of January 29, 1993 (herein, as amended by
the First Amendment dated as of May 23, 1994, the Second Amendment dated as of
October 24, 1994, the Third Amendment dated as of February 28, 1995, the Fourth
Amendment dated November 1, 1995 and the Fifth Amendment dated the date hereof,
and as such agreement may hereinafter be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement"), among Borrower,
Agent and the Banks, pursuant to which Borrower has a Total Commitment Amount
of $150,000,000 as of the date hereof, the proceeds of which may be advanced
from time to time to the Borrower for the general corporate purposes of the
Borrower and its Subsidiaries and Borrower has used such proceeds for the
benefit of the Guarantor;
[ADDITIONAL RECITALS TO FOLLOW]
WHEREAS, as a condition to the Banks' consent to the acquisition of the
capital stock of Guarantor and Borrower's obtaining the Loans for such purpose
under the Credit Agreement, Guarantor is required to execute and deliver this
Guaranty; and
WHEREAS, Guarantor has, in consideration of, among other things, receiving
such present and future advances, duly authorized the execution, delivery and
performance of this Guaranty;
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, Guarantor hereby agrees as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not underscored)
when used in this Guaranty shall, except where the context otherwise requires,
have the following meanings (such definitions to be equally applicable to the
singular and plural forms thereof):
"Agent" shall have the meaning provided in the preamble hereto.
"Banks" shall have the meaning provided in the preamble hereto.
"Borrower" shall have the meaning provided in the second recital hereto.
"Credit Agreement" shall have the meaning provided in the third recital
hereto.
"Default" shall mean any Event of Default or event or conditions which,
with notice or lapse of time or both, would constitute an Event of Default.
"Event of Default" shall mean any of the events described in Section 8.1
of the Credit Agreement.
"Guarantor" shall have the meaning provided in the preamble hereto.
"Xxxx" shall have the meaning provided in the first recital hereto.
"Guaranty" shall have the meaning provided in the preamble hereto.
"Liabilities" shall have the meaning provided in clause (a) of Section
2.1.
"Note" shall mean each Note executed and delivered pursuant to the Credit
Agreement to evidence Loans made thereunder and each other promissory note of
Borrower accepted by any Bank in substitution or replacement therefor.
"Obligor" means any person obligated in any way on any Liability.
"Reimbursement Obligation" shall have the meaning provided in Section 4.6
of the Credit Agreement.
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SECTION 1.2. Credit Agreement Terms. Terms for which meanings are provided
in the Credit Agreement shall, except as otherwise provided herein or as the
context may otherwise require, have the same meanings when used in this
Guaranty.
ARTICLE II
GUARANTY
SECTION 2.1. Guaranty of Payment. The Guarantor, hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and prompt payment and performance when due,
whether by required payment, voluntary prepayment, declaration,
acceleration or otherwise, and at all times thereafter of all of the
monetary obligations of Borrower under the Credit Agreement (including,
without limitation, all Reimbursement Obligations), the Notes and each
other Instrument executed and delivered pursuant thereto (herein called
the "Liabilities"); and
(b) agrees to reimburse Agent and each Bank for all costs and expenses,
including, without limitation, reasonable attorneys' fees and
disbursements, which Agent or any Bank expends or incurs in collecting or
compromising any obligation referred to in clause (a) and in enforcing
this Guaranty, whether or not suit is filed, expressly including, without
limitation, all costs, expenses, reasonable attorneys' fees and other
charges incurred by such Person in connection with any insolvency,
bankruptcy, reorganization, liquidation, dissolution, arrangement or
other similar proceedings involving the Guarantor which in any way affect
the exercise by such Person of its rights, powers, remedies and
privileges with respect to this Guaranty or the outstanding principal
amount of the Notes.
SECTION 2.2. Obligations Absolute, Unconditional, etc. The Guarantor
agrees that its obligations hereunder shall be absolute, unconditional and
irrevocable, irrespective of the genuineness, validity, legality or
enforceability of the Liabilities, the Notes, the Credit Agreement or any other
Instrument executed or to be executed pursuant to the Credit Agreement, or any
other Instrument or collateral relating to or securing the payment, performance
or observance thereof or any other circumstance which could otherwise
constitute a legal or equitable discharge of a surety or guarantor, and Agent
may, at the direction of a Majority of Banks, proceed to enforce this Guaranty
without pursuing or collecting a judgment against any other Person (including,
without limitation, the Guarantor), without resorting to or enforcing any other
collateral or security and without any other action whatsoever. Neither the
Agent nor any Bank shall have any obligation to protect, secure, perfect or
insure any collateral security document or property subject thereto at any time
held as security for the Liabilities or this Guaranty. The Guarantor hereby
absolutely, unconditionally and irrevocably waives and agrees not to assert or
take advantage of:
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(a) any right to require Agent or any Bank to proceed against Borrower
or any other Obligor or any other Person, or to proceed against or
exhaust any other security or collateral for the payment, performance or
observance of the Liabilities, or to pursue any other remedy whatsoever
before proceeding against the Guarantor hereunder;
(b) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any Person, or the failure of Agent or
any Bank to file or enforce a claim against any estate (in
administration, bankruptcy or any other proceedings) of any Person;
(c) any defense based upon an election of remedies by Agent or any Bank,
including, without limitation, an election to proceed by non-judicial
rather than judicial foreclosure, which destroys or impairs any right of
subrogation of the Guarantor or the right of the Guarantor to proceed
against Borrower or any other Person for reimbursement or both;
(d) any other defense of Borrower, or the cessation of the liability of
Borrower for any cause whatsoever, with respect to any Liability;
(e) any other defense of any kind, whether now existing or arising
hereafter, of the Guarantor to any action, suit or judicial or legal
proceeding that may be instituted with respect to this Guaranty;
(f) presentment, demand, protest and notice of any kind, including,
without limitation, notice of the creation or non-payment or
non-performance of all or any of the Liabilities, notice of dishonor or
protest, notice of acceptance by Agent and Banks of this Agreement,
notice of the existence, creation or incurrence of any new or additional
indebtedness, obligation or other liability, and notice of action or
non-action on the part of Agent, any Bank, Borrower or the Guarantor or
any other Obligor or other Person in connection with the Liabilities or
otherwise; and
(g) any duty on the part of Agent, any Bank or other Person to disclose
to the Guarantor any facts or information any such Person may now or
hereafter know or possess regarding Borrower, the Liabilities or any
other matter whatsoever, regardless of whether such Person has reason to
believe that such facts or other information may materially increase the
risk which the Guarantor intends to assume or has reason to believe that
such facts or other information are unknown to the Guarantor or has a
reasonable opportunity to communicate such facts or other information, it
being understood and agreed that the Guarantor is fully and solely
responsible for being and keeping informed of the financial condition of
Borrower and of all other circumstances bearing on the risk of
non-payment, non-performance or non-observance of any Liability.
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This Guaranty shall in all respects be a continuing, absolute, unconditional
and irrevocable Guaranty of payment, and shall remain in full force and effect
until all Liabilities have been fully paid, and may not be amended, modified or
supplemented except in accordance with Section 11.1 of the Credit Agreement.
This Guaranty shall continue to be effective, or to be reinstated, as the case
may be, if at any time any payment, in whole or in part, of any Liability is
rescinded or must otherwise be restored or returned by Agent or any Bank upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Guarantor or Borrower, or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to the Guarantor or Borrower or any part of either of its property, or
otherwise, all as though such payments had never been made. If any Default
shall at any time have occurred and be continuing and acceleration of the Notes
shall at any time be prevented by reason of the pendency against Borrower of a
case or proceeding under a bankruptcy or insolvency law, the Guarantor agrees
that, for purposes of this Guaranty and its obligations hereunder, the maturity
of such principal amount shall be deemed to have been accelerated with the same
effect as if the holders of the Notes had accelerated the same in accordance
with the terms of the Credit Agreement, and the Guarantor shall, to the extent
it constitutes Liabilities, forthwith pay such principal amount and interest
(if any) thereon and other Liabilities without further notice of demand.
SECTION 2.3. Waiver of All Defenses. Agent may, from time to time, in its
sole discretion and without notice to the Guarantor, take any or all of the
following actions, all without in any way diminishing, impairing, releasing or
affecting the liability or obligations of the Guarantor under or with respect
to this Guaranty, and the Guarantor hereby irrevocably consents to any or all
of the following actions by Agent, any Bank or any holder of any Note:
(a) retain or obtain a Security Interest in any property to secure any
of the Liabilities or any obligation hereunder;
(b) retain or obtain the primary or secondary obligations of any obligor
or obligors, in addition to the Guarantor and the other Obligors, with
respect to any of the Liabilities;
(c) extend or renew for one or more periods (whether or not longer than
the original period), or alter or exchange, any of the Liabilities, or
release or compromise any obligation of the Guarantor hereunder or any
obligation of any nature of any other Obligor or any other Person with
respect to any of the Liabilities or amend or modify in any respect the
Credit Agreement or any Instrument executed pursuant thereto;
(d) waive, modify, subordinate, compromise or release its Security
Interest in, or surrender, release or permit any substitution or exchange
for, all or any part of any property securing any of the Liabilities or
any obligation hereunder, or extend or renew for one or more periods
(whether or not longer than the original period) or waive, release,
subordinate, compromise, modify, alter or exchange any guaranty or other
obligations of any nature of any obligor with respect to any such
property; and
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(e) resort to the Guarantor for payment of any of the Liabilities,
whether or not Agent or any Bank shall have resorted to or exhausted any
other remedy or any other security or collateral for any obligation
hereunder or shall have proceeded against Borrower or any other Obligor
or other Person primarily or secondarily obligated with respect to any of
the Liabilities.
The Guarantor absolutely, unconditionally and irrevocably agrees that, as
long as any Liabilities have not been paid in full, the Guarantor shall not
have and shall not enforce any right of subrogation, and the Guarantor waives
any right to enforce any remedy which Agent, any Bank or the holder of any Note
now has or may hereafter have against Borrower or any other Person hereunder or
pursuant hereto or under or pursuant to the Credit Agreement, the Notes or any
other Instrument executed or to be executed pursuant hereto or thereto, and any
benefit of, and any right to participate in, any security for the Liabilities
now or hereafter held by Agent, any Bank or the holder of any Note.
The Guarantor absolutely, unconditionally and irrevocably agrees that the
liability of the Guarantor hereunder, and the remedies for the enforcement of
such liability, shall in no way be diminished or affected by:
(f) the release or discharge of Borrower or any other Obligor or any
other Person responsible for the payment, performance or observance of
any Liability in any creditors' receivership, bankruptcy, reorganization,
insolvency or other proceeding;
(g) the rejection or disaffirmance in any such proceeding of any
Instrument evidencing, securing, or executed in connection with, the
Liabilities; or
(h) the impairment, limitation or modification of the Liabilities
resulting from the operation of any present or future provision of the
federal bankruptcy code or any other statute or law of any kind or from
the decision or order of any court.
The Guarantor absolutely, unconditionally and irrevocably further agrees
that:
(i) the creation from time to time of Liabilities, including, without
limitation, the making of Loans to Borrower, and the application or
allocation of amounts received by Agent or any Bank or any other Person
to the payment of such Liabilities, and the creation, existence or
enforcement from time to time of any security for the Liabilities, and
the application and allocation of the proceeds of such security, shall in
no way affect or impair the rights, remedies, powers and privileges of
Agent or any Bank or the holder of any Note or the obligation of the
Guarantor under this Guaranty; and
(j) any amounts received by Agent or any Bank from whatsoever source on
account of the Liabilities may be applied by it toward the payment of
such of the
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Liabilities and in such order of application as Agent or such Bank may in
its sole discretion determine.
The Guarantor hereby expressly waives notice of the creation of the
Liabilities and all diligence in collection or protection of or realization
upon the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
SECTION 2.4. Payment, etc. by the Guarantor. The Guarantor hereby
unconditionally covenants and agrees that:
(a) in the event Borrower shall fail to duly and punctually pay any
Liability on the date on which such payment is due (whether at scheduled
maturity, by acceleration or otherwise); or
(b) upon the occurrence of any other Event of Default;
the Guarantor will, within five (5) Business Days after the receipt of written
notice from Agent demanding payment of either the amount of the Liability which
Borrower has failed to pay (in the case of a demand arising out of an event
described in clause (a)) or up to the entire unpaid amount of the Liabilities
(in the case of an event described in clause (b)), pay the entire amount of
Liabilities demanded to Agent at its office at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, in immediately available funds. If the Guarantor
fails to pay any such amount, Agent or any Bank may institute any action or
proceeding, and make, obtain and enforce a judgment or final decree, against
the Guarantor and collect in the manner provided by law or in equity out of
such Guarantor's property, wherever situated, all amounts adjudged or decreed
to be payable.
The Guarantor making any payment hereunder shall also be entitled to a
right of subrogation in respect of such payment from Borrower; provided,
however, that so long as the Liabilities remain outstanding, all rights of the
Guarantor against Borrower, by way of right of subrogation or otherwise, shall
in all respects, as provided in the second paragraph of Section 2.3, be
subordinate and junior in right of payment to the prior satisfaction in full of
the Liabilities and no payment in satisfaction of such right of subrogation
shall be made by Borrower, or demanded or claimed by the Guarantor, until such
prior satisfaction in full of the Liabilities.
SECTION 2.5. Limitation of Guaranty. The Guarantor, and by its acceptance
hereof each Bank, hereby confirms that it is the intention of all such parties
that the obligations guaranteed under this Guaranty not constitute a fraudulent
transfer or obligation (a "Fraudulent Conveyance") for the purposes of the
Bankruptcy Law or any similar provisions of Federal or state law. To
effectuate the foregoing intention, the Banks hereby irrevocably agree that the
obligations guaranteed under this Guarantee shall, with respect to the
Guarantor, be automatically reduced by the amount, if any, as is necessary to
result in the obligations guaranteed under this Guarantee not constituting a
Fraudulent Conveyance.
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ARTICLE III
CREDIT AGREEMENT UNDERTAKINGS
SECTION 3.1. Representations and Warranties. The Guarantor hereby
represents and warrants to Agent and each Bank as to all matters contained in
Article VI of the Credit Agreement insofar as the representations and
warranties contained therein are applicable to the Guarantor and its
properties, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit
Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Section.
SECTION 3.2. Covenants. The Guarantor agrees with Agent and each Bank
that, until all Commitments shall have terminated and all Liabilities shall
have been paid in full, the Guarantor will perform, comply with and be bound by
all of the agreements, covenants and obligations contained in Article VII of
the Credit Agreement which are applicable to the Guarantor or its properties,
each such agreement, covenant and obligation contained in such Article and all
other terms of the Agreement to which reference is made herein, together with
all related definitions and ancillary provisions, being hereby incorporated
into this Guaranty by reference as though specifically set forth in this
Section.
SECTION 3.3. Right of Offset. In addition to, and without limitation
of, any other rights of any Bank under any applicable law or otherwise, each
Bank or other holder of a Note may, without demand or prior notice of any kind,
at any time and from time to time when any amount shall be due and payable by
the Guarantor hereunder, appropriate and apply toward the payment of any
Liability or any other amount owing to it hereunder any amounts, property,
balances, credits, deposit accounts or moneys of the Guarantor in the
possession or control of such Bank or holder for any purpose. Each Bank making
any such application shall promptly advise Borrower thereof, but failure to do
so shall not impair the effect of such application.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Instrument Pursuant to Credit Agreement. This Guaranty is an
Instrument executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof, including, without
limitation, Article XI thereof.
SECTION 4.2. Successors and Assigns; Assignment. This Agreement shall be
binding upon the Guarantor and its successors and assigns and shall inure to
the benefit of and be enforceable by Agent and each Bank and their respective
successors and assigns, including, without limitation, any assignee of any
Liability; provided, however, that the Guarantor may not
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assign any of its obligations hereunder without the prior written consent of
all Banks. Agent and each Bank may, subject to the provisions of Section 11.12
of the Credit Agreement, from time to time, without notice to the Guarantor
assign or transfer any Liability or any interest therein, and, notwithstanding
any such transfer or assignment or any subsequent transfer or assignment
thereof, such Liabilities shall be and remain Liabilities for purposes of this
Agreement, and each and every immediate and successive transferee or assignee
of any Liability or any interest therein shall, to the extent of the interest
of such transferee or assignee in the Liabilities, be entitled to the benefits
of this Guaranty.
SECTION 4.3. Independent Obligations. The obligations of the Guarantor
hereunder are independent of the obligations of Borrower, and in the event of
any default hereunder, a separate action or actions may be brought, maintained
and prosecuted against the Guarantor whether or not Borrower is a party thereto
or joined therein or a separate action or actions are brought against Borrower.
Agent and any Bank may maintain successive actions upon any default hereunder.
The rights of Agent and each Bank shall not be exhausted by its exercise of
any of its rights, powers, remedies and privileges hereunder or by any such
action or by any number of successive actions until and unless all Liabilities
and all obligations of the Guarantor hereunder have been fully paid and
performed.
SECTION 4.4 Governing Law. This Guaranty shall be deemed to be a contract
made under and governed by the internal laws of the State of Illinois. For
purposes of any action or proceeding involving this Guaranty, the Guarantor
hereby expressly submits to the jurisdiction of all Federal and State Courts
located in the State of Illinois and consents that it may be served with any
process or paper by registered mail or by personal service within or without
the State of Illinois, provided a reasonable time for appearance is allowed.
SECTION 4.5. Notices. All notices and other communications hereunder to the
Guarantor shall be delivered or transmitted to the Guarantor at the address set
forth below its signature hereto.
SECTION 4.6. Termination. Subject to the last three sentences of
Section 2.2 and to clause (c) of Section 2.3, this Guaranty shall be of no
further force or effect upon the termination in full of the Commitments and the
full payment and performance in full of the Liabilities.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered by its authorized officer as of the date first above written.
DUNJA VERWALTUNGSGESELLSCHAFT
MBH
By: XXXXX X. XXXXXXXXX
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Name: XXXXX X. XXXXXXXXX
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Title:
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Address: c/o IDEX Corporation
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.:(000) 000-0000
BANK OF AMERICA ILLINOIS
(f/k/a CONTINENTAL BANK N.A.),
as Agent
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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