Exhibit 4(d)
US GUARANTY
This US GUARANTY (this "US Guaranty"), dated as of May 15, 2003, by
and among the Guarantors listed on the signature pages hereof and those
additional entities that hereafter become parties hereto by executing the form
of Supplement attached hereto as Annex 1, as guarantors (each, a "Guarantor"
and collectively, "Guarantors"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, individually and as agent (in such capacity, "Agent")
for itself, General Electric Capital Canada Inc., as Canadian agent ("Canadian
Agent") and the lenders from time to time signatory to the Credit Agreement
hereinafter defined.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof by and among Xxxxxx, Inc., a Delaware corporation, the other
Credit Parties (as defined in the Credit Agreement) signatory thereto, Agent,
Canadian Agent and the other Persons signatory thereto from time to time as
lenders ("Lenders") (as from time to time amended, restated, supplemented or
otherwise modified, the "Credit Agreement") US Lenders (as defined in the
Credit Agreement) have agreed to make Loans (as defined in the Credit
Agreement) to, and to incur Letter of Credit Obligations (as defined in the
Credit Agreement) on behalf of US Borrowers (as defined in the Credit
Agreement), and Canadian Lenders (as defined in the Credit Agreement) have
agreed to make Loans to Canadian Borrowers (as defined in the Credit
Agreement);
WHEREAS, each Guarantor, other than Holdings (as defined in the
Credit Agreement), is either a US Borrower or a direct or indirect Subsidiary
of a US Borrower and Holdings is the direct or indirect parent of each US
Borrower and as such each Guarantor will derive direct and indirect economic
benefits from the making of the Loans and other financial accommodations
provided to Borrowers pursuant to the Credit Agreement; and
WHEREAS, in order to induce Agent, Canadian Agent and Lenders to
enter into the Credit Agreement and other Loan Documents and to induce Lenders
to make the Loans and to incur Letter of Credit Obligations as provided for in
the Credit Agreement, Guarantors have agreed to guarantee payment of the
Obligations;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce Lenders to provide the Loans and other
financial accommodations under the Credit Agreement, it is agreed as follows:
1. DEFINITIONS.
Capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement, unless otherwise defined herein.
References to this "US Guaranty" shall mean this US Guaranty,
including all amendments, modifications and supplements and any annexes,
exhibits and schedules to any of the foregoing, and shall refer to this US
Guaranty as the same may be in effect at the time such reference becomes
operative.
2. THE GUARANTY.
2.1. Guaranty of Guaranteed Obligations of Borrowers. (i) Each
Guarantor hereby jointly and severally unconditionally guarantees to Agent,
Canadian Agent and Lenders, and their respective successors, endorsees,
transferees and assigns, the prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of the Canadian Obligations of
Canadian Borrowers, and (ii) each Guarantor that is not an US Borrower hereby
jointly and severally unconditionally guarantees to Agent and Lenders, and
their respective successors, endorsees, transferees and assigns, the prompt
payment (whether at stated maturity, by acceleration or otherwise) and
performance of the US Obligations of US Borrowers ((i) and (ii) hereinafter,
collectively, the "Guaranteed Obligations"). Each US Borrower is jointly and
severally liable for, and unconditionally guarantees all of the US Obligations
owed to Agent and US Lenders by each other US Borrower pursuant to the terms
of the Credit Agreement. Guarantors agree that this US Guaranty is a guaranty
of payment and performance and not of collection, and that their obligations
under this US Guaranty shall be primary, absolute and unconditional,
irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in this US Guaranty, any other Loan
Document or any other agreement, document or instrument to which any
Credit Party and/or Guarantors are or may become a party;
(b) the absence of any action to enforce this US Guaranty or any
other Loan Document or the waiver or consent by Agent, Canadian Agent
and/or Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its
Lien against, any Collateral for the Guaranteed Obligations or any
action, or the absence of any action, by Agent in respect thereof
(including, without limitation, the release of any such security); or
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor,
it being agreed by each Guarantor that its obligations under this US Guaranty
shall not be discharged until the Termination Date. Each Guarantor shall be
regarded, and shall be in the same position, as principal debtor with respect
to the Guaranteed Obligations. Each
Guarantor agrees that any notice or directive given at any time to Agent which
is inconsistent with the waiver in the immediately preceding sentence shall be
null and void and may be ignored by Agent, Canadian Agent and Lenders, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this US Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this US Guaranty, unless Agent,
Canadian Agent and Lenders have specifically agreed otherwise in writing. It
is agreed among each Guarantor, Agent, Canadian Agent and Lenders that the
foregoing waivers are of the essence of the transaction contemplated by the
Loan Documents and that, but for this US Guaranty and such waivers, Agent,
Canadian Agent and Lenders would decline to enter into the Credit Agreement.
2.2. Demand by Agent, Canadian Agent or Lenders. In addition to the
terms of the Guaranty set forth in Section 2.1 hereof, and in no manner
imposing any limitation on such terms, it is expressly understood and agreed
that, if, at any time, the outstanding principal amount of the Guaranteed
Obligations under the Credit Agreement (including all accrued interest
thereon) is declared to be immediately due and payable, then Guarantors shall,
without demand, pay to the holders of the Guaranteed Obligations the entire
outstanding Guaranteed Obligations due and owing to such holders. Payment by
Guarantors shall be made to Agent in immediately available Federal funds to an
account designated by Agent or at the address set forth herein for the giving
of notice to Agent or at any other address that may be specified in writing
from time to time by Agent, and shall be credited and applied to the
Guaranteed Obligations.
2.3. Enforcement of Guaranty. In no event shall Agent have any
obligation (although it is entitled, at its option) to proceed against any
Borrower or any other Credit Party or any Collateral pledged to secure
Guaranteed Obligations before seeking satisfaction from any or all of the
Guarantors, and Agent may proceed, prior or subsequent to, or simultaneously
with, the enforcement of Agent's rights hereunder, to exercise any right or
remedy which it may have against any Collateral, as a result of any Lien it
may have as security for all or any portion of the Guaranteed Obligations.
2.4. Waiver. In addition to the waivers contained in Section 2.1
hereof, Guarantors waive, and agree that they shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage
of, any appraisal, valuation, stay, extension, marshaling of assets or
redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by Guarantors of
their Guaranteed Obligations under, or the enforcement by Agent, Canadian
Agent or Lenders of, this US Guaranty. Guarantors hereby waive diligence,
presentment and demand (whether for non-payment or protest or of acceptance,
maturity, extension of time, change in nature or form of the Guaranteed
Obligations, acceptance of further security, release of further security,
composition or agreement arrived at as to the amount of, or the terms of, the
Guaranteed Obligations, notice of adverse change in any Borrower's financial
condition or any other fact which might increase the risk to Guarantors) with
respect to any of the Guaranteed Obligations or all other demands
whatsoever and waive the benefit of all provisions of law which are or might
be in conflict with the terms of this US Guaranty. Guarantors represent,
warrant and jointly and severally agree that, as of the date of this US
Guaranty, their obligations under this US Guaranty are not subject to any
offsets or defenses against Agent, Canadian Agent or Lenders or any Credit
Party of any kind. Guarantors further jointly and severally agree that their
obligations under this US Guaranty shall not be subject to any counterclaims,
offsets or defenses against Agent, Canadian Agent or any Lender or against any
Credit Party of any kind which may arise in the future.
2.5. Benefit of Guaranty. The provisions of this US Guaranty are for
the benefit of Agent, Canadian Agent and Lenders and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between any Credit Party and Agent, Canadian Agent or
Lenders, the obligations of any Credit Party under the Loan Documents. In the
event all or any part of the Guaranteed Obligations are transferred, endorsed
or assigned by Agent or any Lender to any Person or Persons, any reference to
"Agent" or "Lender" herein shall be deemed to refer equally to such Person or
Persons.
2.6. Modification of Guaranteed Obligations, Etc. Each Guarantor
hereby acknowledges and agrees that Agent, Canadian Agent and Lenders may at
any time or from time to time, with or without the consent of, or notice to,
Guarantors or any of them:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available
to it at law, equity or otherwise, or waive or refrain from exercising
any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Documents;
(d) extend or waive the time for any Credit Party's performance of,
or compliance with, any term, covenant or agreement on its part to be
performed or observed under the Loan Documents, or waive such performance
or compliance or consent to a failure of, or departure from, such
performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which Agent, Canadian Agent or Lenders have been granted a Lien, to
secure any Obligations;
(f) release anyone who may be liable in any manner for the payment
of any Obligations or Guaranteed Obligations;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
any Guarantor or any Credit Party are subordinated to the claims of
Agent, Canadian Agent and Lenders; and/or
(h) apply any sums by whomever paid or however realized to any
amounts owing by any Guarantor or any Credit Party to Agent, Canadian
Agent or any Lender in such manner as Agent, Canadian Agent or any Lender
shall determine in its discretion;
and Agent, Canadian Agent and Lenders shall not incur any liability to
Guarantors as a result thereof, and no such action shall impair or release the
Guaranteed Obligations of Guarantors or any of them under this US Guaranty.
Notwithstanding anything contained in this US Guaranty to the contrary, nothing
contained in this US Guaranty constitutes a waiver or modification of any
rights a Guarantor who is also a US Borrower under the Credit Agreement may
have in its capacity as a US Borrower under the Credit Agreement.
2.7. Reinstatement. This US Guaranty shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Credit Party or any Guarantor for liquidation or reorganization, should
any Credit Party or any Guarantor become insolvent or make an assignment for
the benefit of creditors or should a receiver, interim receiver, receiver and
manager or trustee be appointed for all or any significant part of such Credit
Party's or such Guarantor's assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Guaranteed Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by
any obligee of the Guaranteed Obligations, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed
Obligations shall be reinstated and deemed reduced only by such amount paid
and not so rescinded, reduced, restored or returned.
2.8. Deferral of Subrogation, Etc. Notwithstanding anything to the
contrary in this US Guaranty, or in any other Loan Document, each Guarantor
hereby:
(a) expressly and irrevocably waives, on behalf of itself and its
successors and assigns (including any surety) until payment and
performance, in full, of the Guaranteed Obligations has occurred, any and
all rights at law or in equity to subrogation, to reimbursement, to
exoneration, to contribution, to indemnification, to set off or to any
other rights that could accrue to a surety against a principal, to a
guarantor against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the holder
of any claim against any Person, and which such Guarantor may have or
hereafter acquire against any Credit Party in connection with or as a
result of such Guarantor's execution, delivery and/or performance of this
US Guaranty, or any other documents to which such Guarantor is a party or
otherwise; and
(b) acknowledges and agrees (i) that this waiver is intended to
benefit Agent, Canadian Agent and Lenders and shall not limit or
otherwise effect any Guarantor's liability hereunder or the
enforceability of this US Guaranty, and (ii) that Agent, Lenders and
their respective successors and assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 2.8
and their rights under this Section 2.8 shall survive payment in full of
the Guaranteed Obligations.
2.9. Election of Remedies. If Agent, Canadian Agent or any Lender
may, under applicable law, proceed to realize benefits under any of the Loan
Documents giving Agent, Canadian Agent and Lenders a Lien upon any Collateral
owned by any Credit Party, either by judicial foreclosure or by non- judicial
sale or enforcement, Agent, Canadian Agent or any Lender may, at its sole
option, determine which of such remedies or rights it may pursue without
affecting any of such rights and remedies under this US Guaranty. If, in the
exercise of any of its rights and remedies, Agent, Canadian Agent or any
Lender shall forfeit any of its rights or remedies, including its right to
enter a deficiency judgment against any Credit Party, whether because of any
applicable laws pertaining to "election of remedies" or the like, Guarantors
hereby consent to such action by Agent, Canadian Agent or any Lender and waive
any claim based upon such action, even if such action by Agent, Canadian Agent
or any Lender shall result in a full or partial loss of any rights of
subrogation which Guarantors might otherwise have had but for such action by
Agent, Canadian Agent or such Lender. Any election of remedies which results
in the denial or impairment of the right of Agent, Canadian Agent or any
Lender to seek a deficiency judgment against any Credit Party shall not impair
each Guarantor's obligation to pay the full amount of the Guaranteed
Obligations. In the event Agent, Canadian Agent or any Lender shall bid at any
foreclosure or trustee's sale or at any private sale permitted by law or the
Loan Documents, Agent, Canadian Agent or such Lender may bid all or less than
the amount of the Guaranteed Obligations and the amount of such bid need not
be paid by Agent, Canadian Agent or such Lender but shall be credited against
the Guaranteed Obligations. The amount of the successful bid at any such sale
shall be conclusively deemed to be the fair market value of the collateral and
the difference between such bid amount and the remaining balance of the
Guaranteed Obligations shall be conclusively deemed to be the amount of the
Guaranteed Obligations guaranteed under this US Guaranty, notwithstanding that
any present or future law or court decision or ruling may have the effect of
reducing the amount of any deficiency claim to which Agent, Canadian Agent or
any Lender might otherwise be entitled but for such bidding at any such sale.
2.10. Funds Transfers. If any Guarantor shall engage in any
transaction as a result of which any Borrower is required to make a mandatory
prepayment with respect to the Guaranteed Obligations under the terms of the
Credit Agreement (including any issuance or sale of such Guarantor's Stock or
any sale of its assets), such Guarantor shall distribute to, or make a
contribution to the capital of, one or more of the Borrowers an amount equal
to the mandatory prepayment required under the terms of the Credit Agreement.
3. DELIVERIES.
In a form satisfactory to Agent, Guarantors shall deliver to Agent
(with sufficient copies for each Lender), concurrently with the execution of
this US Guaranty and the Credit Agreement, the Loan Documents and other
instruments, certificates and documents as are required to be delivered by
Guarantors to Agent under the Credit Agreement.
4. REPRESENTATIONS AND WARRANTIES.
To induce Lenders to make the Loans and incur Letter of Credit
Obligations under the Credit Agreement, Guarantors jointly and severally make
the representations and warranties as to each Credit Party contained in the
Credit Agreement, each of which is incorporated herein by reference, and the
following representations and warranties to Agent, Canadian Agent and each
Lender, each and all of which shall survive the execution and delivery of this
US Guaranty:
4.1. Corporate Existence; Compliance with Law. Each Guarantor (i) is
a corporation or a limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization, as applicable; (ii) is duly qualified to do business and is in
good standing under the laws of each jurisdiction where its ownership or lease
of property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not result in exposure to losses,
damages or liabilities which could, in the aggregate, reasonably be expected
to result in a Material Adverse Effect; (iii) has the requisite power and
authority and the legal right to own and operate in all material respects its
properties, to lease the property it operates under lease, and to conduct its
business in all material aspects as now, heretofore and proposed to be
conducted and has the requisite power and authority and the legal right to
pledge, mortgage, hypothecate or otherwise encumber the Collateral; (iv)
subject to specific representations regarding Environmental Laws, has all
material licenses, permits, consents or approvals from or by, and has made all
material filings with, and has given all material notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct; (v) is in compliance with its charter, constating
documents and bylaws or partnership or operating agreement, as applicable; and
(vi) subject to specific representations set forth in the Credit Agreement
regarding ERISA, Environmental Laws, Tax and other laws, is in compliance with
all applicable provisions of law, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.2. Executive Offices. As of the Closing Date, the current location
of each Guarantor's chief executive office and principal place of business are
as set forth in Disclosure Schedule (3.2) of the Credit Agreement, and, except
as disclosed on such schedule, none of such locations has changed within the
12 months preceding the Closing Date.
4.3. Corporate Power; Authorization; Enforceable Guaranteed
Obligations. The execution, delivery and performance of this US Guaranty and
all other Loan Documents and all instruments and documents to be delivered by
each Guarantor hereunder and under the Credit Agreement (i) are within such
Guarantor's power; (ii) have been duly authorized by all necessary or proper
corporate or limited liability company action, including the consent of
stockholders or members where required; (iii) are not in contravention of any
provision of such Guarantor's charter, constating documents, bylaws, or
operating agreement, as applicable; (iv) do not violate any law or regulation,
or any order or decree of any Governmental Authority (v) after giving effect
to the repayment of the Prior Lender Obligations, do not conflict with or
result in the breach of, or constitute a default under, or accelerate or
permit the acceleration of any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which any
Guarantor is a party or by which any Guarantor or any of its property is
bound; (vi) do not result in the creation or imposition of any Lien upon any
of the property of any Guarantor, other than those in favor of Agent, for
itself, Canadian Agent and the benefit of Lenders; and the same (vii) do not
require the consent or approval of any Governmental Authority or any other
Person except those which have been duly obtained, made or complied with prior
to the Closing Date pursuant to Section 2.1(c) of the Credit Agreement. On or
prior to the Closing Date, this US Guaranty and each of the Loan Documents to
which any Guarantor is a party shall have been duly executed and delivered for
the benefit of or on behalf of such Guarantor, and each shall then constitute
a legal, valid and binding obligation of such Guarantor, enforceable against
such Guarantor in accordance with its terms.
5. FURTHER ASSURANCES.
Each Guarantor agrees, upon the written request of Agent, Canadian
Agent or any Lender, to execute and deliver to Agent, Canadian Agent or such
Lender, from time to time, any additional instruments or documents reasonably
considered necessary by Agent, Canadian Agent or such Lender to cause this US
Guaranty to be, become or remain valid and effective in accordance with its
terms.
6. PAYMENTS FREE AND CLEAR OF TAXES.
All payments required to be made by each Guarantor hereunder shall
be made to Agent, Canadian Agent and Lenders free and clear of, and without
deduction for,
any and all present and future Taxes. If any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder, (a)
the sum payable shall be increased as much as shall be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 6) Agent, Canadian Agent or Lenders, as
applicable, receive an amount equal to the sum they would have received had no
such deductions been made, (b) such Guarantor shall make such deductions, and
(c) such Guarantor shall pay the full amount deducted to the relevant taxing
or other authority in accordance with applicable law. Within thirty (30) days
after the date of any payment of Taxes, each applicable Guarantor shall
furnish to Agent the original or a certified copy of a receipt evidencing
payment thereof. Each Guarantor shall jointly and severally indemnify and,
within ten (10) days of demand therefor, pay Agent, Canadian Agent and each
Lender for the full amount of Taxes paid by Agent, Canadian Agent or such
Lender, as appropriate, on or with respect to any payment by or an account of
any obligations of Guarantors hereunder (including any Taxes imposed by any
jurisdiction on amounts payable under this Section 6) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted.
7. OTHER TERMS.
7.1. Entire Agreement. This US Guaranty, together with the other
Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
relating to a guaranty of the loans and advances under the Loan Documents
and/or the Guaranteed Obligations.
7.2. Headings. The headings in this US Guaranty are for convenience
of reference only and are not part of the substance of this US Guaranty.
7.3. Severability. Whenever possible, each provision of this US
Guaranty shall be interpreted in such a manner to be effective and valid under
applicable law, but if any provision of this US Guaranty shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this US Guaranty.
7.4. Notices. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall
or may be given to or served upon any of the parties by any other party, or
whenever any of the parties desires to give or serve upon another any such
communication with respect to this US Guaranty, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be addressed to the party to be notified as follows:
(a) If to Agent or Canadian Agent at:
General Electric Capital Corporation
(or, as applicable, c/o General Electrical Capital
Corporation)
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx, Inc. Account Manager
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with copies to:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, III, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) If to any Lender, at the address of such Lender specified in the
Credit Agreement.
(c) If to any Guarantor, at the address of such Guarantor specified
on Schedule I hereto.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been validly served, given or delivered (i) upon the earlier of actual
receipt and three (3) Business Days after the same shall have been deposited
with the United States mail, registered or certified mail, return receipt
requested, with proper postage prepaid, (ii) upon transmission, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States mail as otherwise provided in this Section 7.4), (iii) one (1)
Business Day after deposit with a reputable overnight carrier with all charges
prepaid, or (iv) when delivered, if hand-
delivered by messenger.
7.5. Successors and Assigns. This US Guaranty and all obligations of
Guarantors hereunder shall be binding upon the successors and assigns of each
Guarantor (including a debtor-in-possession on behalf of such Guarantor) and
shall, together with the rights and remedies of Agent, for the benefit of
itself, Canadian Agent and Lenders, hereunder, inure to the benefit of Agent,
Canadian Agent and Lenders, all future holders of any instrument evidencing
any of the Obligations and their respective successors and assigns. No sales
of participations, other sales, assignments, transfers or other dispositions
of any agreement governing or instrument evidencing the Obligations or any
portion thereof or interest therein shall in any manner affect the rights of
Agent, Canadian Agent and Lenders hereunder. Guarantors may not assign, sell,
hypothecate or otherwise transfer any interest in or obligation under this US
Guaranty.
7.6. No Waiver; Cumulative Remedies; Amendments. None of Agent,
Canadian Agent or any Lender shall by any act, delay, omission or otherwise be
deemed to have waived any of its rights or remedies hereunder, and no waiver
shall be valid unless in writing, signed by Agent and then only to the extent
therein set forth. A waiver by Agent, for itself, Canadian Agent and Lenders,
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which Agent would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on the
part of Agent, Canadian Agent or any Lender, any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
future exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies hereunder provided are cumulative and may
be exercised singly or concurrently, and are not exclusive of any rights and
remedies provided by law. None of the terms or provisions of this US Guaranty
may be waived, altered, modified, supplemented or amended except by an
instrument in writing, duly executed by Agent and Guarantors.
7.7. Termination. This US Guaranty is a continuing guaranty and
shall remain in full force and effect until the Termination Date. Upon payment
and performance in full of the Guaranteed Obligations, Agent shall deliver to
Guarantors such documents as Guarantors may reasonably request to evidence
such termination.
7.8. Counterparts. This US Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one
and the same agreement. This US Guaranty may be authenticated by manual
signature, facsimile or, if approved in writing by Agent, electronic means,
all of which shall be equally valid.
7.9. Intentionally Omitted.
7.10. Intentionally Omitted.
7.11. Limitation on Guaranteed Obligations. Notwithstanding any
provision herein contained to the contrary, each Guarantor's liability
hereunder shall be limited to an amount not to exceed as of any date of
determination the greater of:
(a) the net amount of all Loans and other extensions of credit
(including Letters of Credit) advanced under the Credit Agreement
and directly or indirectly re-loaned or otherwise transferred to, or
incurred for the benefit of, such Guarantor, plus interest thereon
at the applicable rate specified in the Credit Agreement; or
(b) the amount which could be claimed by Agent, Canadian Agent
and Lenders from such Guarantor under this US Guaranty without
rendering such claim voidable or avoidable under Section 548 of
Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act
or similar foreign or domestic statute or common law after taking
into account, among other things, such Guarantor's right of
contribution and indemnification from each other Guarantor under
Section 7.12.
Notwithstanding the foregoing, in any case, each Guarantor's
Liability shall not exceed the Guaranteed Obligations (which amount
shall account for any prior payments in respect of the Guaranteed
Obligations) or any amounts received by Agent, Canadian Agent or
Lenders with respect to the Guaranteed Obligations from any action
by Agent, Canadian Agent or Lenders with respect to any Collateral
or any of the Credit Parties).
7.12. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under
this US Guaranty of all or any of the Guaranteed Obligations (a
"Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by the other
Guarantors, exceeds the amount which such Guarantor would otherwise
have paid if each Guarantor had paid the aggregate Guaranteed
Obligations satisfied by such Guarantor Payment in the same
proportion that such Guarantor's "Allocable Amount" (as defined
below) (in effect immediately prior to such Guarantor Payment) bore
to the aggregate Allocable Amounts of all of Guarantors in effect
immediately prior to the making of such Guarantor Payment, then,
following indefeasible payment in full in cash of the Obligations
and termination of the Commitments, such Guarantor shall be entitled
to receive contribution and indemnification payments from, and be
reimbursed by, each of the other Guarantors for the amount of such
excess, pro rata based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of
any Guarantor shall be equal to the maximum amount of the claim
which could then be recovered from such Guarantor under this US
Guaranty without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 7.12 is intended only to define the relative
rights of Guarantors and nothing set forth in this Section 7.12 is
intended to or shall impair the obligations of Guarantors, jointly
and severally, to pay any amounts as and when the same shall become
due and payable in accordance with the terms of this US Guaranty.
(d) The rights of the parties under this Section 7.12 shall be
exercisable upon the full and indefeasible payment of the
Obligations and the termination of the Commitments.
(e) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets
of any Guarantor to which such contribution and indemnification is
owing.
7.13 New Subsidiaries. Pursuant to Section 5.13 of the Credit
Agreement, the Credit Parties may create wholly owned direct or indirect
Subsidiaries after the Closing Date (as defined in the Credit Agreement) so
long as at the time of the formation of any such direct or indirect Subsidiary
of any Credit Party, Credit Parties, or any of them, as appropriate, shall
cause such new United States domestic Subsidiary, to enter into this Agreement
by executing and delivering in favor of Agent an instrument in the form of
Annex 1 attached hereto. Upon the execution and delivery of Annex 1 by such
new United States domestic Subsidiary, such domestic Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the
consent of any Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor hereunder. Any document, agreement or instrument
executed or issued pursuant to this Section 7.13 shall be a "Loan Document"
for purposes of the Credit Agreement.
8. SECURITY.
To secure payment of each Guarantor's obligations under this US
Guaranty, concurrently with the execution of this US Guaranty, each Guarantor
has entered into a US Security Agreement pursuant to which each Guarantor has
granted to Agent for the benefit, of itself, Canadian Agent, and Lenders a
security interest in substantially all of its personal property and has
entered into a Shared Pledge Agreement pursuant to which each Guarantor has
pledged all of the Stock of each of its domestic
Subsidiaries and 65% of the Stock of each of its foreign Subsidiaries to
Collateral Agent for the benefit of Secured Parties (as defined in the
Collateral Agency Agreement).
9. CREDIT AGREEMENT.
Each Guarantor agrees to perform, comply with and be bound by the
covenants contained in Sections 4, 5 and 6 of the Credit Agreement (which
provisions are incorporated herein by reference).
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this US Guaranty as of the date first above written.
GUARANTORS: XXXXXX INTERNATIONAL, INC.
By:_____________________________
Name:___________________________
Title:__________________________
XXXXXX, INC.
By:_____________________________
Name:___________________________
Title:__________________________
FABTEK CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
GEAR PRODUCTS, INC.
By:_____________________________
Name:___________________________
Title:__________________________
XXXXX INDUSTRIES, INC.
By:_____________________________
Name:___________________________
Title:__________________________
XXXXXXXXX MANUFACTURING CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
WINDSOR FORESTRY TOOLS LLC
By: Xxxxxx, Inc., its sole member
By:_____________________________
Name:___________________________
Title:__________________________
4520 CORP., INC.
By:_____________________________
Name:___________________________
Title:__________________________
OMARK PROPERTIES, INC.
By:_____________________________
Name:___________________________
Title:__________________________
BI, L.L.C.
By: Xxxxxx, Inc., its managing member
By:_____________________________
Name:___________________________
Title:__________________________
AGENT: GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:_____________________________
Name:___________________________
Title:__________________________
SCHEDULE I
If to any Guarantor, to Borrower Representative, at
Xxxxxx, Inc.
0000 X.X. Xxxxxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx, III
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Cami, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
ANNEX 1
FORM OF SUPPLEMENT TO SUBSIDIARY GUARANTY
Supplement No. __ (this "Supplement") dated as of _______ to the US
Guaranty dated as of ______ ___, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the "US Guaranty") by each of the
Guarantors listed on the signature pages thereto and those additional entities
that thereafter become parties thereto (each, a "Guarantor" and collectively,
"Guarantors"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, individually and as agent (in such capacity, "Agent") for itself,
General Electric Capital Canada Inc., as Canadian agent ("Canadian Agent") and
the lenders from time to time signatory to the Credit Agreement hereinafter
defined.
WITNESSETH:
WHEREAS, pursuant to that certain Credit Agreement dated as of May 15,
2003 by and among Xxxxxx, Inc., a Delaware corporation, the other Credit
Parties (as defined in the Credit Agreement) signatory thereto, Agent,
Canadian Agent and the other Persons signatory thereto from time to time as
lenders ("Lenders") (including all annexes, exhibits and schedules thereto, as
from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), US Lenders have agreed to make Loans (as defined in the
Credit Agreement) to, and incur Letter of Credit Obligations (as defined in
the Credit Agreement) on behalf of US Borrowers (as defined in the Credit
Agreement), and Canadian Lenders have agreed to make Loans to Canadian
Borrowers;
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the US Guaranty, and if not
defined therein, in the Credit Agreement; and
WHEREAS, in order to induce Agent, Canadian Agent and Lenders to enter
into the Credit Agreement and other Loan Documents and to induce Lenders to
make the Loans and to incur Letter of Credit Obligations as provided for in
the Credit Agreement, Guarantors have agreed to guarantee payment of the
Obligations;
WHEREAS, pursuant to provisions of Section 5.13 of the Credit Agreement,
Credit Parties may create new wholly owned direct or indirect Subsidiaries
after the Closing Date so long as at the time of the formation of any such
direct or indirect Subsidiary of any Credit Party, Credit Parties, or any of
them, as appropriate, shall cause such new United States domestic Subsidiary
to provide to Agent a supplement to the US Guaranty, and such other security
documents reasonably requested by Agent in its discretion and the execution of
the US Guaranty by the undersigned new Guarantor or Guarantors (collectively,
"New Guarantor") may be accomplished by the execution of this Supplement in
favor of Agent for the benefit of itself, Canadian Agent and Lenders;
NOW, THEREFORE, for and in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, New Guarantor hereby agrees as follows:
SECTION 1. In accordance with Section 7.13 of the US Guaranty, New
Guarantor, by its signature below, becomes a "Guarantor" under the US Guaranty
with the same force and effect as if originally named therein as a "Guarantor"
and New Guarantor hereby (a) agrees to all of the terms and provisions of the
US 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, New Guarantor, as security for the payment and
performance in full of the Guaranteed Obligations, does hereby guarantee,
subject to the limitations set forth in Section 7 of the US Guaranty, to
Agent, for the benefit of itself, Canadian Agent and Lenders, the full and
prompt payment of the Guaranteed Obligations pursuant to the Credit Agreement
and every other Loan Document. Each reference to a "Guarantor" in the US
Guaranty shall be deemed to include the New Guarantor. The US Guaranty is
incorporated herein by reference.
SECTION 2. New Guarantor represents and warrants to Agent, Canadian Agent
and Lenders that this Supplement has been duly executed and delivered by New
Guarantor and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
SECTION 3. This Supplement may be executed in any number of counterparts,
each of which shall collectively and separately constitute one and the same
agreement. This Supplement may be authenticated by manual signature, facsimile
or, if approved in writing by Agent, electronic means, all of which shall be
equally valid.
SECTION 4. Except as expressly supplemented hereby, the US Guaranty shall
remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE BINDING UPON EACH GUARANTOR AND ITS
RESPECTIVE SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF
OF SUCH GUARANTOR), AND SHALL, TOGETHER WITH THE RIGHTS AND REMEDIES OF AGENT,
FOR THE BENEFIT OF ITSELF, CANADIAN AGENT AND LENDERS, HEREUNDER, INURE TO THE
BENEFIT OF AGENT, CANADIAN AGENT AND LENDERS, ALL FUTURE HOLDERS OF ANY
INSTRUMENT EVIDENCING ANY OF THE OBLIGATIONS AND THEIR RESPECTIVE SUCCESSORS
AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN THAT STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY
SIGNED FOR AND ON BEHALF OF AGENT AND GUARANTOR.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, New Guarantor has duly executed this Supplement to
the US Guaranty as of the day and year first above written.
NEW GUARANTOR: [Name of New Guarantor]
By:_____________________________
Name:___________________________
Title:__________________________
