Exhibit 4(l)
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XXXXXX HOLDINGS GUARANTEE
Made as of May 15, 2003
Between
XXXXXX HOLDINGS LTD.,
as Guarantor
and
GENERAL ELECTRIC CAPITAL CANADA INC.,
as Canadian Agent
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TABLE OF CONTENTS
PAGE
SECTION 1 - INTERPRETATION................................................1
1.1 Definitions......................................................1
1.2 Other Defined Terms..............................................2
1.3 References.......................................................2
1.4 Rules of Interpretation..........................................2
SECTION 2 - GUARANTEE.....................................................2
SECTION 3 - PAYMENT.......................................................2
3.1 Payment on Demand................................................2
3.2 No Set-Off.......................................................3
3.3 Taxes............................................................3
3.4 Tax Gross-up.....................................................3
SECTION 4 - OBLIGATIONS ABSOLUTE..........................................3
SECTION 5 - INDEMNITY.....................................................3
SECTION 6 - OBLIGATIONS CONTINUING........................................4
6.1 No Reduction.....................................................4
6.2 Effect of Rescission.............................................4
SECTION 7 - OBLIGATIONS NOT AFFECTED......................................4
7.1 Obligations Not Affected.........................................4
7.2 Waiver...........................................................5
7.3 No Obligation to Take Action Against Credit Parties..............6
7.4 Dealing With Borrower and Others.................................6
7.5 Acknowledgement..................................................6
7.6 Accounts Stated..................................................7
7.7 Postponement.....................................................7
7.8 Funds Transfer...................................................7
SECTION 8 - REPRESENTATIONS AND WARRANTIES OF GUARANTOR...................7
8.1 Representations and Warranties...................................7
SECTION 9 - GENERAL.......................................................8
9.1 Notices..........................................................8
9.2 Successor Canadian Agent.........................................9
9.3 Applicable Law..................................................10
9.4 Jurisdiction....................................................10
9.5 Costs and Expenses..............................................10
9.6 No Waiver; Cumulative Remedies..................................10
9.7 Waiver of Rights of Subrogation, Reimbursement, Etc.............11
9.8 Guarantee in Addition to Other Obligations......................11
TABLE OF CONTENTS
(CONTINUED)
PAGE
9.9 Entire Agreement................................................11
9.10 Severability....................................................12
9.11 Successors and Assignees........................................12
9.12 Counterparts....................................................12
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XXXXXX HOLDINGS LTD. GUARANTEE
This Guarantee is made as of May 15, 2003, between
XXXXXX HOLDINGS LTD., a Canada corporation ("GUARANTOR"),
and
GENERAL ELECTRIC CAPITAL CANADA INC., a Canada corporation,
individually and as agent (together with its successors and
assigns, "CANADIAN AGENT") for itself and the financial
institutions and other entities that are from time to time
Canadian Lenders under the Credit Agreement (as hereinafter
defined)
RECITALS
A. Pursuant to that certain Credit Agreement dated as of the date hereof by and
among Xxxxxx, Inc., a Delaware corporation, Xxxxxx Canada Ltd., a Canada
corporation ("CANADIAN BORROWER"), the other Credit Parties (as defined in the
Credit Agreement) signatory thereto, General Electric Capital Corporation, as
Agent, General Electric Capital Canada Inc., as Canadian Agent and the other
Persons signatory thereto from time to time as Canadian Lenders ("CANADIAN
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 Canadian Loans
(as defined in the Credit Agreement) to Canadian Borrower.
B. Guarantor is a Credit Party under the Credit Agreement.
C. In connection with making the Canadian Loans, as provided for in the Credit
Agreement, and as a condition precedent thereto, the Canadian Agent and the
Canadian Lenders require that Guarantor shall have executed and delivered a
guarantee of the Canadian Obligations (as defined in the Credit Agreement) of
Canadian Borrower and the other Canadian Credit Parties (other than Guarantor).
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce Canadian Lenders to provide the Canadian
Loans and other financial accommodations under the Credit Agreement, it is
agreed as follows:
SECTION 1 - INTERPRETATION
1.1 DEFINITIONS.
In this Guarantee:
(1) GUARANTEE means this Guarantee, as amended, restated, supplemented and
otherwise modified from time to time.
(2) GUARANTEED OBLIGATIONS has the meaning given to it in Section 2 of this
Guarantee.
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(3) GUARANTEED PARTIES has the meaning given to it in Section 2 of this
Guarantee.
(4) TAX and TAXES each has the meaning given to it in Section 3.2(2) of this
Guarantee.
1.2 OTHER DEFINED TERMS.
Capitalized terms used herein and not otherwise defined have the meanings given
to them in the Credit Agreement.
1.3 REFERENCES.
Unless something in the subject matter or context is inconsistent therewith, all
references to Sections are to sections and subsections of this Guarantee. The
words "hereto", "herein", "hereof", "hereunder" and similar expressions refer to
this Guarantee and not to any particular Section, paragraph or other portion
hereof.
1.4 RULES OF INTERPRETATION.
In this Guarantee, unless otherwise specifically provided, the singular includes
the plural and vice versa and "in writing" or "written" includes printing,
typewriting or any electronic means of communication capable of being visibly
reproduced at the point of reception, including telecopier.
SECTION 2 - GUARANTEE
Guarantor hereby irrevocably and unconditionally guarantees to Canadian Agent
and each of the Canadian Lenders and their respective successors, transferees
and assigns (collectively, the "GUARANTEED PARTIES") the punctual and complete
payment when due (whether at stated maturity, by acceleration or otherwise) and
performance of all the Canadian Obligations of Canadian Borrower or any other
Canadian Credit Party (other than Guarantor) which are or may become at any time
and from time to time owing or payable, or to be performed to, or for the
benefit of, the Guaranteed Parties, or any of them, or which remain owing or
unpaid to, or to be performed for the benefit of, the Guaranteed Parties, or any
of them (the "GUARANTEED OBLIGATIONS"). Guarantor agrees that this Guarantee is
a guarantee of payment and performance and not of collection.
SECTION 3 - PAYMENT
3.1 PAYMENT ON DEMAND.
Guarantor agrees to make immediate payment to the Guaranteed Parties, or any of
them, of all Guaranteed Obligations owing or payable at that time to the
Guaranteed Parties, or any of them, upon demand for payment therefor by Canadian
Agent to Guarantor. Any payment made under this Guarantee shall be applied in
reduction of the Guaranteed Obligations, as contemplated by the Credit
Agreement.
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3.2 NO SET-OFF.
Each payment to be made by Guarantor hereunder in respect of the Guaranteed
Obligations shall be payable in the currency or currencies in which such
Guaranteed Obligations are denominated, and shall be made:
(1) without set-off or counterclaim; and
(2) free and clear of and without deduction or withholding for or on account of
any present and future taxes, levies, imposts, stamp taxes, duties, charges to
tax, fees, deductions, withholdings and any conditions or restrictions resulting
in charges to tax and all penalties, interest and other payments on or in
respect thereof ("TAX" or "TAXES") unless Guarantor is compelled by law to make
payment subject to such Taxes.
3.3 TAXES.
All Taxes (other than those imposed on or measured by the net income or capital
of Canadian Agent or a Lender by the jurisdiction under the laws of which
Canadian Agent or such Lender is organized or is resident or carries on business
through a permanent establishment located therein or a political subdivision
thereof) in respect of this Guarantee or any amounts payable or paid under this
Guarantee shall be paid by Guarantor when due and, in any event, prior to the
date on which penalties attach thereto. Guarantor will indemnify each of the
Guaranteed Parties against and in respect of all such Taxes.
3.4 TAX GROSS-UP.
Without limiting the generality of the foregoing, if any Taxes (other than those
imposed on or measured by the net income or capital of Canadian Agent or a
Lender by the jurisdiction under the laws of which Canadian Agent or such Lender
is organized or is resident or carries on business through a permanent
establishment located therein or a political subdivision thereof) or amounts in
respect thereof must be deducted or withheld from any amounts payable or paid by
Guarantor hereunder, Guarantor shall pay such additional amounts as may be
necessary to ensure that each of the Guaranteed Parties receives a net amount
equal to the full amount which it would have received had payment (including of
any additional amounts payable under this Section 3.4) not been made subject to
such Taxes. Within thirty (30) days of each payment by Guarantor hereunder of
Taxes or in respect of Taxes, Guarantor shall deliver to Canadian Agent
satisfactory evidence (including originals, or certified copies, of all relevant
receipts) that such Taxes have been duly remitted to the appropriate authority
or authorities.
SECTION 4 - OBLIGATIONS ABSOLUTE
The obligations of Guarantor hereunder are and shall be absolute and
unconditional.
SECTION 5 - INDEMNITY
As an original and independent obligation under this Guarantee, Guarantor shall:
(1) indemnify each of the Guaranteed Parties, and keep each of the Guaranteed
Parties indemnified, against all costs, losses, expenses and liabilities of
whatever kind resulting from the failure by any Canadian Credit Party (other
than Guarantor) to make due and punctual payment
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of any of the Guaranteed Obligations or resulting from any of the Guaranteed
Obligations being or becoming void, voidable, unenforceable or ineffective
against any Canadian Credit Party (other than Guarantor) (including, but without
limitation, all legal and other costs, charges and expenses incurred by the
Guaranteed Parties, or any of them, in connection with preserving or enforcing,
or attempting to preserve or enforce, its rights under this Guarantee); and
(2) pay on demand the amount of such costs, losses, expenses and liabilities
whether or not any of the Guaranteed Parties has attempted to enforce any rights
against any other Credit Party or any other Person or otherwise.
SECTION 6 - OBLIGATIONS CONTINUING
6.1 NO REDUCTION.
The obligations of Guarantor hereunder shall be continuing and shall remain in
full force and effect so long as any of the Canadian Obligations remain
outstanding and until all the Guaranteed Obligations have been paid, satisfied
and performed in full. The obligations of Guarantor hereunder shall not be
satisfied, reduced, affected or discharged by any intermediate payment,
settlement or satisfaction of the whole or any part of the principal, interest,
fees and other monies or amounts which may at any time be or become owing or
payable under or by virtue of or otherwise in connection with the Guaranteed
Obligations or the Loan Documents.
6.2 EFFECT OF RESCISSION.
The obligations of Guarantor hereunder shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payment which would
otherwise have reduced the obligations of Guarantor hereunder (whether such
payment shall have been by or on behalf of Canadian Borrower, any other Credit
Party or by or on behalf of Guarantor) is rescinded or reclaimed from any of the
Guaranteed Parties upon the insolvency, bankruptcy, liquidation or
reorganization of Guarantor, any other Credit Party or otherwise, or any part of
such payment is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by Canadian Agent or any Canadian Lender
as a "voidable preference", "fraudulent conveyance", or otherwise, all as though
such payment had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
SECTION 7 - OBLIGATIONS NOT AFFECTED
7.1 OBLIGATIONS NOT AFFECTED.
The obligations of Guarantor hereunder shall not be affected or impaired by any
act, omission, matter or thing whatsoever, occurring before, upon or after any
demand for payment hereunder (and whether or not known to Guarantor or any of
the Guaranteed Parties) which, but for this provision, might constitute a whole
or partial defence to a claim against Guarantor hereunder or might operate to
release or otherwise exonerate Guarantor from any of its obligations hereunder
or otherwise affect such obligations, whether occasioned by default of any of
the Guaranteed Parties or otherwise, including, without limitation:
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(1) any limitation of status or power, disability, incapacity or other
circumstance relating to Canadian Borrower, any other Credit Party or any other
Person, including any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding-up or other proceeding involving
or affecting Guarantor, any other Credit Party or any other Person;
(2) any irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of any Credit Party or any other Person under
the Loan Documents or any other document or instrument;
(3) any failure of any Credit Party or any other Person, whether or not without
fault on their part, to perform or comply with any of the provisions of the Loan
Documents or to give notice thereof to Guarantor;
(4) the taking or enforcing or exercising or the refusal or neglect to take or
enforce or exercise any right or remedy against any Credit Party or any other
Person or their respective assets, or the release or discharge of any such right
or remedies;
(5) the granting of time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to any Credit Party or any
other Person;
(6) any amendment, variation, modification, supplement or replacement of the
Loan Documents or any other document or instrument;
(7) any change in the ownership, control, name, objects, businesses, assets,
capital structure or constitution of Guarantor, any other Credit Party or any
other Person;
(8) any merger, amalgamation or consolidation of Guarantor or any other Credit
Party with any Person or Persons;
(9) the occurrence of any change in the laws, rules, regulations or ordinances
of any jurisdiction or by any present or future action of any governmental body
or court amending, varying, reducing or otherwise affecting, or purporting to
amend, vary, reduce or otherwise affect, any of the Guaranteed Obligations or
the obligations of Guarantor under this Guarantee;
(10) the existence of any claim, set-off or other rights which Guarantor may
have at any time against any other Credit Party, the Guaranteed Parties or any
other Person, or which any Credit Party may have at any time against the
Guaranteed Parties, whether in connection with the Loan Documents or otherwise;
and
(11) any other circumstance (other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or defence of any
Credit Party under the Loan Documents, or of Guarantor in respect of its
guarantee hereunder.
7.2 WAIVER.
Without in any way limiting the provisions of Section 7.1 of this Guarantee,
Guarantor hereby waives notice of acceptance hereof, notice of any liability of
Guarantor hereunder, notice or proof of reliance by the Guaranteed Parties upon
the obligations of Guarantor hereunder, and diligence, presentment, demand for
payment on any other Credit Party, protest, notice of
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dishonour or non-payment of any of the Guaranteed Obligations, or other notice
or formalities to such Credit Party, of any kind whatsoever.
7.3 NO OBLIGATION TO TAKE ACTION AGAINST CREDIT PARTIES.
Neither Canadian Agent nor any of the other Guaranteed Parties shall have any
obligation to enforce any rights or remedies or to take any other steps against
Canadian Borrower, any other Credit Party or any other Person or any property of
Canadian Borrower, any other Credit Party or any other Person before Canadian
Agent is entitled to demand payment and performance by Guarantor of its
liabilities and obligations under this Guarantee, and Guarantor hereby waives
all benefit of discussion. The obligations of Guarantor hereunder are
independent of the Guaranteed Obligations and a separate action or actions may
be brought and prosecuted against Guarantor to enforce this Guarantee,
irrespective of whether any action is brought against Canadian Borrower or any
other Credit Party or whether Canadian Borrower or any other Credit Party is
joined in any such action or actions.
7.4 DEALING WITH BORROWER AND OTHERS.
The Guaranteed Parties, without releasing, discharging, limiting or otherwise
affecting in whole or in part Guarantor's obligations and liabilities hereunder
and without the consent of or notice to Guarantor, may:
(1) grant time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to any other Credit Party or any
other Person;
(2) amend, vary, modify, supplement or replace any Loan Document or any other
related document or instrument;
(3) take or abstain from taking securities or collateral from any other Credit
Party, or from perfecting securities or collateral of any other Credit Party;
(4) release, discharge, compromise, realize, enforce or otherwise deal with or
do any act or thing in respect of (with or without consideration) any and all
collateral, mortgages or other security given by any other Credit Party or any
third party with respect to the obligations or matters contemplated by the
Credit Agreement;
(5) accept compromises or arrangements from any other Credit Party;
(6) apply all money at any time received from any other Credit Party, or from
securities upon such part of the Guaranteed Obligations as they may see fit or
change any such application in whole or in part from time to time as they may
see fit; and
(7) otherwise deal with, or waive or modify their right to deal with, any other
Credit Party, and all other Persons and securities as they may see fit.
7.5 ACKNOWLEDGEMENT.
Guarantor hereby acknowledges communication of the terms of the Loan Documents
and of all the provisions therein contained and consents to and approves the
same.
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7.6 ACCOUNTS STATED.
Guarantor shall be bound by any account settled between any Canadian Credit
Party and the Guaranteed Parties, and if no such account has been so settled
immediately before demand for payment under this Guarantee, any account stated
by Canadian Agent shall be accepted by Guarantor as prima facie evidence in the
absence of manifest error of the amount which at the date of the account so
stated is due by a Canadian Credit Party to the Guaranteed Parties or remains
unpaid by Canadian Credit Party to the Guaranteed Parties.
7.7 POSTPONEMENT.
Until the Termination Date, all indebtedness and liabilities, present and
future, of Canadian Borrower or any other Credit Party to Guarantor are hereby
postponed to the liabilities to the Guaranteed Parties and all money received by
Guarantor in respect of the indebtedness and liabilities of Canadian Borrower or
any other Credit Party to Guarantor shall be received in trust for the
Guaranteed Parties and forthwith upon receipt shall be paid over to Canadian
Agent on behalf of the Guaranteed Parties, the whole without in any way limiting
or lessening the liability of Guarantor under the guarantee contained in this
Guarantee; and this postponement is independent of such guarantee and shall
remain in full effect notwithstanding that the liability of Guarantor under such
guarantee may be extinct; provided, that nothing in this Section 7.7 shall
restrict in any way any payments in respect of the indebtedness and liabilities
of Canadian Borrower or any other Credit Party to Guarantor which are expressly
permitted by the Credit Agreement.
7.8 FUNDS TRANSFER.
If Guarantor shall engage in any transaction as a result of which Canadian
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 Guarantor's equity interests or any sale of its assets),
Guarantor shall distribute to Canadian Borrower an amount equal to the mandatory
prepayment required under the terms of the Credit Agreement to the extent
attributable to such transaction.
SECTION 8 - REPRESENTATIONS AND WARRANTIES OF GUARANTOR
8.1 REPRESENTATIONS AND WARRANTIES.
Guarantor represents and warrants to Canadian Agent on behalf of the Guaranteed
Parties as follows and acknowledges and confirms that the Guaranteed Parties are
relying upon such representations and warranties:
(1) Guarantor is a corporation duly incorporated and validly existing under the
laws of Canada and has all requisite power and authority to execute, deliver and
perform this Guarantee;
(2) Guarantor 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,
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damages or liabilities which could, in the aggregate, reasonably be expected to
result in a Material Adverse Effect;
(3) Guarantor has the requisite power and authority and the legal right to own
and operate its properties, to lease the property it operates under lease, and
to conduct its business 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;
(4) subject to specific representations set forth in the Credit Agreement
regarding Environmental Laws, Guarantor 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;
(5) Guarantor is in compliance with its constating documents and bylaws or
partnership or operating agreement, as applicable;
(6) subject to specific representations set forth in the Credit Agreement
regarding Environmental Laws, Tax and other laws, Guarantor 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;
(7) this Guarantee is a legal, valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms, except as
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors'
rights and except to the extent that availability of the remedy of specific
performance or injunctive relief and other equitable remedies are subject to the
discretion of the court before which any proceeding therefor may be brought.
SECTION 9 - GENERAL
9.1 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 Guarantee, 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:
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(a) If to Canadian Agent, at:
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 a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, III Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
(b) If to any Lender, at the address of such Lender specified in the
Credit Agreement
(c) If to Guarantor, at the following address:
000 Xxxxxxxxx Xxxx Xxxxx,
Xxxxxx, Xxxxxxx X0X 0X0
Attention: General Manager
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with copies to:
Xxxxxx Holdings Ltd.
c/x Xxxxxx, Inc.
0000 X.X. Xxxxxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx III
Telecopy Number: (503) 653-461
Telephone Number: (000) 000-0000
and to:
Blake, Xxxxxxx & Xxxxxxx LLP
X.X. Xxx 00, Xxxxx 0000
Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
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Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
or such other address as may be substituted by notice given as herein provided.
9.1 SUCCESSOR CANADIAN AGENT.
In the event that Canadian Agent for the time being under the Credit Agreement
shall resign and a successor agent thereafter shall be appointed in accordance
with Section 9.7 of the Credit Agreement, then upon such successor agent
agreeing in writing to be bound by the provisions of this Guarantee as Canadian
Agent hereunder, all references herein to Canadian Agent in this Guarantee shall
be deemed to be references to such successor agent as and from such date and
such successor agent shall receive and become vested with all the rights,
powers, privileges and duties of the retiring or removed Canadian Agent and the
retiring or removed Canadian Agent shall be discharged from its further duties
and obligations as Canadian Agent under this Guarantee.
9.2 APPLICABLE LAW.
This Guarantee shall be conclusively deemed to be a contract made under, and
shall for all purposes be governed by, and construed and interpreted in
accordance with, the laws of the Province of Ontario and the federal laws of
Canada applicable therein in effect from time to time without prejudice to or
limitation of any other rights or remedies available under the laws of any
jurisdiction where property or assets of Guarantor may be found.
9.3 JURISDICTION.
(1) Guarantor irrevocably agrees that any suits, actions or proceedings arising
out of or in connection with this Guarantee (collectively "PROCEEDINGS") may be
brought in any court in the Province of Ontario and submits and attorns to the
non-exclusive jurisdiction of each such court.
(2) Guarantor irrevocably waives any objections which it may have now or
hereafter to the laying of the venue of any Proceedings in any court referred to
in paragraph (1) and any claim that any such Proceedings have been brought in an
inconvenient forum and further irrevocably agrees that a judgment in any
Proceedings brought in any such court shall be conclusive and binding upon
Guarantor and may be enforced in any courts to the jurisdiction of which such
parties may be subject by Proceedings upon such judgment.
(3) Nothing contained in this Section 9.4 shall limit the right of Canadian
Agent or any other Guaranteed Party to take Proceedings against Guarantor in any
other court of competent jurisdiction nor shall the taking of Proceedings in one
or more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(4) Guarantor hereby irrevocably consents generally to the fullest extent
permitted by law in respect of any Proceedings to the giving of any relief and
the issue of any process in connection with such Proceedings including, without
limitation, the making, enforcement or execution
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against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such Proceedings.
(5) Guarantor hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Guarantee or any other Loan
Document, the transactions contemplated hereby or thereby or the actions of any
Guaranteed Party in the negotiation, administration, performance or enforcement
hereof or thereof.
9.5 COSTS AND EXPENSES.
Guarantor shall pay on demand by Canadian Agent any and all reasonable costs,
fees and expenses (including, without limitation, reasonable legal fees and
expenses) incurred by Canadian Agent in enforcing any of its rights under this
Guarantee.
9.6 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of any Guaranteed
Party, any right, remedy, power or privilege hereunder or under the Loan
Documents, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or under the Loan
Documents preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein and under the Loan Documents are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
9.7 WAIVER OF RIGHTS OF SUBROGATION, REIMBURSEMENT, ETC.
Guarantor hereby irrevocably waives any claim or other rights that it may now or
hereafter acquire against any other Credit Party, that arise from the existence,
payment, performance or enforcement of the Guaranteed Obligations under this
Guarantee, the Credit Agreement or any other Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Guaranteed Party against any other Credit Party, or any collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from any
other Credit Party, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right; provided, however, that such waiver shall terminate on the
Termination Date; provided, that Canadian Agent shall be entitled to hold any
Potential Preference Payment (as hereafter defined) in trust for the benefit of
the Guaranteed Parties and shall forthwith pay such amount to the Guaranteed
Parties, to be credited and applied following the expiry of the potential
preference period, to the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms of the Credit Agreement. The term "POTENTIAL
PREFERENCE PAYMENT" shall mean any payment or other transfer received for the
benefit of the Guaranteed Parties for or on account of the Guaranteed
Obligations which could be avoided by a trustee in bankruptcy for any other
Credit Party, or by or for the benefit of other creditors of any other Credit
Party as a "preference" or a "preferential transfer" or for any other reason
under any applicable bankruptcy, insolvency or similar law now or hereafter in
effect in any bankruptcy, insolvency or similar proceeding with respect to any
other Credit Party. Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by
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the Credit Agreement and that the waiver set forth in this Section 9.7 is
knowingly made in contemplation of such benefits.
9.8 GUARANTEE IN ADDITION TO OTHER OBLIGATIONS.
The obligations of Guarantor under this Guarantee are in addition to and not in
substitution for any other obligations to Canadian Agent or to any of the other
Guaranteed Parties in relation to the Loan Documents and any guarantees,
indemnities or security at any time held by or for the benefit of any of them.
To secure payment of the obligations of the Guarantor under this Guarantee,
concurrently with the execution of this Guarantee, the Guarantor has entered
into Collateral Documents pursuant to which the Guarantor has granted to the
Canadian Agent, for the benefit of itself and Canadian Lenders, security in all
of its Collateral identified therein.
9.9 ENTIRE AGREEMENT.
This Guarantee, including all documents contemplated hereby, constitutes the
entire agreement between the parties with respect to the subject matter and
supersedes all prior negotiations, undertakings, representations and
understandings.
9.10 SEVERABILITY.
Any provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.11 SUCCESSORS AND ASSIGNEES.
This Guarantee shall be binding upon and enure to the benefit of Guarantor and
Canadian Agent and the other Guaranteed Parties and their respective successors
and permitted assignees, except that Guarantor may not assign any of its
obligations hereunder.
9.12 COUNTERPARTS.
This Guarantee may be executed in any number of separate counterparts, each of
which shall collectively and separately constitute one agreement.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Guarantor has caused this Guarantee to be duly
executed and delivered by its proper and duly authorized officers as of the day
and year first above written.
XXXXXX HOLDINGS LTD.
c/s
By: -------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
GENERAL ELECTRIC CAPITAL CANADA INC.,
AS CANADIAN AGENT
c/s
By: -------------------------
Name:
Title:
