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EXHIBIT 4.3
SUBSIDIARY GUARANTEE
Subject to Section 11.06 of the Indenture, each Subsidiary Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Notes and the Obligations of the Company under the Notes or under
the Indenture, that: (a) the principal of, premium, if any, interest and
Liquidated Damages, if any, on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration,
redemption or otherwise, and interest on overdue principal, premium, if any, (to
the extent permitted by law) interest on any interest, if any, and Liquidated
Damages, if any, on the Notes and all other payment Obligations of the Company
to the Holders or the Trustee under the Indenture or under the Notes will be
promptly paid in full and performed, all in accordance with the terms thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other payment Obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any amount
so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and
severally obligated to pay the same immediately.
The obligations of the Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture are incorporated herein by reference. This
Subsidiary Guarantee is subject to release as and to the extent provided in
Section 11.04 of the Indenture.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note to which this
Subsidiary Guarantee relates shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability shall be
limited to the lesser of (i) the aggregate amount of the Obligations of the
Company under the Notes and the
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Indenture and (ii) the amount, if any, which would not have (A) rendered such
Subsidiary Guarantor "insolvent" (as such term is defined in the Bankruptcy Law
and in the Debtor and Creditor Law of the State of New York) or (B) left such
Subsidiary Guarantor with unreasonably small capital at the time its Subsidiary
Guarantee of the Notes was entered into; provided that, it will be a presumption
in any lawsuit or other proceeding in which a Subsidiary Guarantor is a party
that the amount guaranteed pursuant to the Subsidiary Guarantee is the amount
set forth in clause (i) above unless any creditor, or representative of
creditors of such Subsidiary Guarantor, or debtor in possession or trustee in
bankruptcy of such Subsidiary Guarantor, otherwise proves in such a lawsuit that
the aggregate liability of the Subsidiary Guarantor is limited to the amount set
forth in clause (ii) above. In making any determination as to the solvency or
sufficiency of capital of a Subsidiary Guarantor in accordance with the previous
sentence, the right of such Subsidiary Guarantors to contribution from other
Subsidiary Guarantors and any other rights such Subsidiary Guarantors may have,
contractual or otherwise, shall be taken into account.
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Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
XXXXXX-XXXX US LLC
XXXXXX-XXXX INTERNATIONAL L.L.C.
ART MATERIALS, FRAMES AND
MOULDING COMPANY, INC.
XXXXXX X. XX XXXXXX, INC.
GLASS CORPORATION OF AMERICA, INC.
XXX XXXX, INC.
EASTERN MOULDING, INC.
EASTERN MOULDINGS, INC.
XXXXXX-XXXX AUSTRALIA L.L.C.
XXXXXX-XXXX FRANCE L.L.C.
XXXXXX-XXXX SOUTH AFRICA L.L.C.
XXXXXX-XXXX KOREA L.L.C.
XXXXXX-XXXX SEOUL L.L.C.
XXXXXX-XXXX NETHERLANDS L.L.C.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, as:
Chairman, President and CEO of:
XXXXXX-XXXX INTERNATIONAL L.L.C.
Chairman and CEO of
XXXXXX-XXXX U.S., L.L.C.
President of:
ART MATERIALS, FRAMES AND
MOULDING COMPANY, INC.
XXXXXX X. XX XXXXXX, INC.
GLASS CORPORATION OF AMERICA, INC.
XXX XXXX, INC.
EASTERN MOULDING, INC.
EASTERN MOULDINGS, INC.
Manager of:
XXXXXX-XXXX AUSTRALIA L.L.C.
XXXXXX-XXXX FRANCE L.L.C.
XXXXXX-XXXX SOUTH AFRICA L.L.C.
XXXXXX-XXXX KOREA L.L.C.
XXXXXX-XXXX SEOUL L.L.C.
XXXXXX-XXXX NETHERLANDS L.L.C.
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