SUBSIDIARY GUARANTEE
GUARANTEE, dated as of March 30, 1998, ("Guarantee") by each person
which is a party hereto as set forth on the signature pages hereto (each, a
"Guarantor" and, collectively, the "Guarantors"), in favor and for the benefit
of CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), having an office at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and in its capacity as collateral
agent (in such capacities and together with any successors in such capacity, the
"Collateral Agent") for the ratable benefit of the lending institutions (the
"Banks") from time to time party to the Credit Agreement (as hereinafter
defined).
R E C I T A L S :
A. Pursuant to a certain Credit Agreement, dated as of March 30,
1998 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used herein and not
defined shall have the meanings assigned to them in the Credit Agreement), among
XXXXXX MATERIAL HANDLING, INC. ("MMH"), as a U.S. Borrower, MATERIAL HANDLING,
LLC, as a U.S. Borrower (together with MMH, the "U.S. Borrowers"), XXXXXX
MATERIAL HANDLING LIMITED, as U.K. Borrower (the "U.K. Borrower"), KAVERIT STEEL
AND CRANE ULC and MONDEL ULC, as Canadian Borrowers (the "Canadian Borrowers",
and together with the U.S. Borrowers and the U.K. Borrower, the "Borrowers"),
MMH HOLDINGS, INC. ("Holdings"), CREDIT AGRICOLE INDOSUEZ, as Syndication Agent,
BANKBOSTON, N.A., as Documentation Agent, the Banks and CIBC, as Administrative
Agent and Collateral Agent for the Banks (together with the Syndication Agent
and the Documentation Agent, the "Agents"), the Banks have agreed (i) to make to
or for the account of MMH certain Term Loans up to an aggregate principal amount
of $55,000,000, to make to or for the account of the U.S. Borrowers certain
Acquisition Term Loans up to an aggregate principal amount of $30,000,000 and to
make certain Revolving Loans to the Borrowers up to an aggregate principal
amount of $70,000,000 and (ii) to make certain Swingline Loans to and to issue
certain Letters of Credit for the account of the Borrowers.
B. It is contemplated that the Borrowers may enter into one or more
agreements with one or more of the Banks ("Interest Rate Agreements") fixing the
interest rates with respect to Loans under the Credit Agreement (all obligations
of the Borrowers now existing or hereafter arising under such Interest Rate
Agreements, collectively, the "Interest Rate Obligations").
C. It is a condition to the obligations of the Banks to make the
Loans under the Credit Agreement and a condition to any Bank issuing Letters of
Credit or Acceptances under the Credit Agreement or entering into the Interest
Rate Agreements
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that the Guarantors shall have executed and delivered this Guarantee and that
this Guarantee shall be in full force and effect.
D. This Guarantee is given by each Guarantor in favor of the
Collateral Agent for its benefit and the benefit of the Banks to guarantee all
of the Obligations of the Borrowers in accordance with the terms of the Credit
Agreement.
E. Each Guarantor's obligations hereunder shall be joint and several
with the obligations of each other Guarantor hereunder, and shall be secured
pursuant to the Security Documents to which such Guarantor is a party.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each Guarantor hereby agrees as follows:
1. Guarantee. (a) To induce the Banks to execute and deliver the
Credit Agreement and to make the Loans and issue the Letters of Credit upon the
terms and conditions set forth in the Credit Agreement, and in consideration
thereof, each Guarantor hereby unconditionally and irrevocably (i) guarantees to
the Banks and their respective successors, endorsees, transferees and assigns,
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) and at all times thereafter of the
Obligations of the Borrowers (including amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code); and (ii) agrees to pay any and all reasonable expenses (including
reasonable attorneys' fees and disbursements) which may be paid or incurred by
the Banks, the Agents or the Collateral Agent in enforcing any rights with
respect to, or collecting, any or all of the Obligations and/or enforcing any
rights with respect to, or collecting against, each Guarantor under this
Guarantee (collectively, the "Guaranteed Obligations").
(b) Each Guarantor agrees that this Guarantee constitutes a
guarantee of payment when due and not of collection and waives any right to
require that any resort be had by the Collateral Agent, the Agents or any Bank
to any of the security held for payment of any of the Guaranteed Obligations or
to any balance of any deposit account or credit on the books of the Agents, the
Collateral Agent or any Bank in favor of any Borrower or any other Person.
(c) No payment or payments made by any Guarantor or any other Person
or received or collected by the Banks (or the Collateral Agent or Agents on
behalf of the Banks) from any Guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or
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from time to time in reduction of or in payment of the Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability or
obligations of the Guarantors hereunder which shall, notwithstanding any such
payment or payments other than payments made to the Banks (or the Collateral
Agent or Agents on behalf of the Banks) by any Guarantor or payments received or
collected by the Banks (or the Collateral Agent or Agents on behalf of the
Banks) from any Guarantor, remain liable for the Guaranteed Obligations until
the Guaranteed Obligations are paid in full in Cash or Cash Equivalents, subject
to the provisions of Section 1(d) hereof.
(d) Notwithstanding any other provisions of this Guarantee, the
maximum aggregate amount of Guaranteed Obligations which each Guarantor agrees
to guarantee pursuant to this Guarantee shall equal the lesser of (i) the excess
of the fair saleable value of the property of such Guarantor over the total
liabilities of such Guarantor (including the maximum amount reasonably expected
to become due in respect of contingent liabilities, other than any such
contingent liabilities under the Credit Agreement and the other Credit
Documents), such excess to be determined on the date of this Guarantee or the
date on which, from time to time, such enforcement or realization is effected,
whichever is higher and (ii) that amount of Guaranteed Obligations which does
not result in a violation of applicable laws relating to fraudulent conveyance,
after giving effect to the value of any rights to subrogation, reimbursement,
indemnification or contribution (including without limitation rights to
contribution from any other Subsidiary Guarantor) whether by agreement or under
applicable law. The obligations of each Guarantor hereunder shall be joint and
several with the obligations of each other Guarantor hereunder. Subject to the
preceding sentences, each Guarantor understands, agrees and confirms that this
is a guarantee of payment when due and not of collection and that each Bank may,
from time to time, enforce this Guarantee against any Guarantor up to the full
amount of the Guaranteed Obligations owed to such Bank without proceeding
against any other Credit Party, against any security for the Guaranteed
Obligations, against any other guarantor or under any other guarantee covering
the Guaranteed Obligations.
Each Guarantor that makes a payment or distribution under this
Guarantee shall be entitled to a contribution from each other Subsidiary
Guarantor in an amount pro rata, based on the net assets of each Subsidiary
Guarantor.
2. Waiver by Guarantor. Each Guarantor hereby waives absolutely and
irrevocably any claim which it may have against any Borrower or any of their
respective Affiliates (other than any right to contribution pursuant to Section
1(d) hereof) by reason of any payment to the Agents, Collateral Agent or any
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Bank, or to any other Person pursuant to or in respect of this Guarantee,
including any claims by way of subrogation, contribution, reimbursement,
indemnity or otherwise, until the Guaranteed Obligations are paid in full.
3. Consent by Guarantor. Each Guarantor hereby consents and agrees
that, without the necessity of any reservation of rights against such Guarantor
and without notice to or further assent by such Guarantor, any demand for
payment of any of the Guaranteed Obligations made by the Agents, the Collateral
Agent or any Bank may be rescinded by the Banks (or the Agents or Collateral
Agent on behalf of the Banks) and any of the Guaranteed Obligations continued,
and the Guaranteed Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Banks (or the Agents or the Collateral Agent on
behalf of the Banks); and the Credit Agreement or any other Credit Document, or
other guarantee or documents in connection therewith, or any of them, may be
amended, modified, supplemented or terminated, in whole or in part, as the Banks
(or the Agents or Collateral Agent on behalf of the Banks) may deem advisable
from time to time (in accordance with the terms thereof); and any Guarantee or
right of offset or any collateral may be sold, exchanged, waived, surrendered or
released, all without the necessity of any reservation of rights against such
Guarantor and without notice to or further assent by such Guarantor, which will
remain bound hereunder, notwithstanding any such renewal, extension,
modification, acceleration, compromise, amendment, supplement, termination,
sale, exchange, waiver, surrender or release. Neither the Banks, the Agents nor
the Collateral Agent shall have any obligation to protect, secure, perfect or
insure any collateral or property at any time held as security for the
Guaranteed Obligations or this Guarantee. When making any demand hereunder
against any Guarantor, the Agents, the Collateral Agent or the Banks may, but
shall be under no obligation to, make a similar demand on any other Credit Party
or any such other guarantor, and any failure by the Agents, the Collateral Agent
or the Banks to make any such demand or to collect any payments from such other
Credit Party or any such other guarantor or any release of such other Credit
Party or any such other guarantor or of each Guarantor's obligations or
liabilities hereunder shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Agents, the Collateral Agent
or the Banks against each Guarantor hereunder. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
4. Waivers; Successors and Assigns. Each Guarantor waives any and
all notice of the creation, renewal, extension or
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accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by the Banks upon this Guarantee or acceptance of this Guarantee, and the
Guaranteed Obligations shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Guarantee, and all dealings between
any Guarantor and any other Credit Party, on the one hand, and the Banks, on the
other hand, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or non-payment to
or upon any Credit Party or any Guarantor with respect to the Guaranteed
Obligations. This Guarantee shall be construed as a continuing, absolute and
unconditional Guarantee of payment without regard to the validity, regularity or
enforceability of the Credit Agreement, the other Credit Documents, any of the
Guaranteed Obligations or any guarantee therefor or right of offset with respect
thereto at any time or from time to time held by the Banks and without regard to
any defense (other than the defense of payment), set off or counterclaim which
may at any time be available to or be asserted by any Credit Party against the
Banks, or by any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Guaranteed Obligations, or of
any Guarantor under this Guarantee, in bankruptcy or in any other instance, and
the obligations and liabilities of each Guarantor hereunder shall not be
conditioned or contingent upon the pursuit by the Banks or any other Person at
any time of any right or remedy against any Credit Party or against any other
Person which may be or become liable or obligated in respect of all or any part
of the Guaranteed Obligations or against any collateral security or guarantee
therefor or right of offset with respect thereto. This Guarantee shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Banks, and their respective successors, indorsees,
transferees and assigns permitted under the Credit Agreement (including each
holder from time to time of Guaranteed Obligations) until all of the Guaranteed
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full in Cash or Cash Equivalents,
notwithstanding that from time to time during the term of the Credit Agreement
any Credit Party may be released from all of its Guaranteed Obligations
thereunder.
5. Guarantee Secured. Payment under this Guarantee is secured by
pledges, encumbrances and mortgages of Collateral pursuant to applicable
Security Documents in accordance with the Credit Agreement. Reference is hereby
made to the Credit Agreement and the applicable Security Documents for a
description of the Collateral pledged and the right of the respective parties to
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such property, to secure all the obligations of any Guarantor hereunder which
may be party to such documents.
6. Rights of Set-Off. The Banks, and the Agents and Collateral Agent
on behalf of the Banks, are each hereby irrevocably authorized upon the
occurrence and during the continuance of an Event of Default without notice to
any Guarantor (any such notice being expressly waived by each Guarantor to the
extent permitted by applicable law) to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect or contingent or matured or unmatured, at
any time held or owing by the Banks to or for the credit or the account of any
Guarantor, or any part thereof, in such amounts as the Banks, or the Agents or
Collateral Agent on behalf of the Banks, may elect, against and on account of
the obligations and liabilities of any Guarantor to the Banks, in any currency,
whether arising hereunder or otherwise, as the Banks, or the Agents or
Collateral Agent on behalf of the Banks, may elect, whether or not the Banks, or
the Agents or Collateral Agent on behalf of the Banks, have made any demand for
payment but only to the extent that such obligations, liabilities and claims
shall have become due and payable (whether as stated, by acceleration or
otherwise). The Banks, or the Agents or Collateral Agent on behalf of the Banks,
agree to notify any such Guarantor promptly of any such set-off and the
application made by the Banks, or the Agents or Collateral Agent on behalf of
the Banks; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Banks, or the Agents
or Collateral Agent on behalf of the Banks, under this Section 6 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which the Banks, or the Agents or Collateral Agent on behalf of the
Banks, may otherwise have.
7. Effectiveness; Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by the Banks upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Credit Party, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Credit Party or any substantial part of its
property, or otherwise, all as though such payments had not been made.
8. Payments of Guaranteed Obligations. Each Guarantor hereby
guarantees that the Guaranteed Obligations will be paid for the ratable benefit
of the Banks without set-off or counterclaim in lawful currency of the United
States of America at the office of the Collateral Agent located at 000 Xxxxxxxxx
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Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Each Guarantor shall make any payments
required hereunder upon receipt of written notice thereof from the Agents or
Collateral Agent or any Bank; provided, however, that the failure of the Agents
or Collateral Agent or any Bank to give such notice shall not affect any
Guarantor's obligations hereunder.
9. Default. If (x) any Borrower has failed to pay or perform when
due its Guaranteed Obligations or (y) there is an event with respect to any
Guarantor that would require or permit the acceleration pursuant to Section 8.04
of the Credit Agreement of any outstanding Loan, or (z) any Guarantor's
obligations, if any, under the Credit Agreement are accelerated, then in the
case of clause (x) all of the Guaranteed Obligations with respect to the
Borrowers and in the case of clause (y) or clause (z) all of the Guaranteed
Obligations shall be immediately due and payable by the Guarantors, regardless
of whether in the case of clause (x) the payment of the Guaranteed Obligations
has been accelerated or in the case of clause (y) or clause (z) the Borrowers
are in default with respect to the Guaranteed Obligations.
10. Representations and Warranties. To induce the Banks to enter
into the Credit Agreement and to make Loans and to issue Letters of Credit, each
Guarantor represents and warrants to each Bank that the following statements are
true, correct and complete on and as of the Closing Date:
A. Organization and Powers. (a) Such Guarantor is a duly organized
and validly existing corporation in good standing under the laws of the
jurisdiction of its organization and has the corporate power and authority to
own its property and assets and to transact the business in which it is engaged
and presently proposes to engage. (b) Such Guarantor has duly qualified and is
qualified to do business, or as of the Closing Date has taken appropriate steps
to qualify, and is in good standing in all jurisdictions in which the conduct of
its business or the ownership of its properties requires such qualification,
except where the failure to be so qualified would not have a Material Adverse
Effect. (c) Such Guarantor has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to own
and carry on its businesss as now conducted and as contemplated to be conducted
by the Documents, including, without limitation, those in compliance with or
required by the Environmental Laws other than such licenses, authorizations,
consents and approvals the failure to obtain which has not had and will not have
a Material Adverse Effect. (d) Such Guarantor has all authority to enter into
each of the Security Documents to which it is or is to be a party and to carry
out the transactions contemplated thereby and to execute and deliver this
Guarantee.
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B. No Violations. Neither the execution, delivery or performance by
such Guarantor of any of the Credit Documents to which it is a party, nor
compliance with any of the terms and provisions thereof, nor the consummation of
any of the transactions contemplated therein, nor the grant and perfection of
the security interests pursuant to the Security Documents (a) will contravene
any provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any Governmental Authority, (b) will conflict or be inconsistent with
or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute (with notice or lapse of time or both) a default
under any material contractual obligation of such Guarantor, or (other than as
contemplated by the Security Documents) result in the creation or imposition of
(or the obligation to create or impose), any Lien upon any of the property or
assets of such Guarantor pursuant to any material contractual obligation or (c)
will violate any provision of the organizational documents of such Guarantor.
C. Approvals. The execution, delivery and performance by such
Guarantor of the Credit Documents to which it is, or is to be, a party do not
and will not require any registration with, consent or waiver or approval of, or
notice to, or other action to, with or by, any Governmental Authority or other
Person except filings required for the perfection or maintenance of perfection
of security interests granted pursuant to the Security Documents or enforcement
of the Liens and remedies provided by the Credit Documents. Except for such
filings, all consents and approvals from or notices to or filings with any
Governmental Authority or other Person required to be obtained by such Guarantor
have been obtained and are in full force and effect except where the failure to
obtain such consents or approvals will not result in a Material Adverse Effect
and except for filings required to perfect or maintain the perfection of Liens
granted by the Credit Documents and filings listed on Schedules 5.06 to the
Credit Agreement.
D. Binding Obligation. This Guarantee constitutes the legal, valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability whether enforcement is sought by
proceedings in equity or at law.
E. Investment Company. Such Guarantor is not an "investment company"
or a company "controlled" by an "investment company" (as each of such quoted
terms is defined or used in the Investment Company Act of 1940, as amended) or
subject to any foreign, federal or local statute or regulation limiting its
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ability to incur indebtedness for money borrowed or guarantee such indebtedness
as contemplated hereby or by any other Credit Document.
11. Ratable Sharing. The Banks by acceptance of this Guarantee agree
among themselves that with respect to all amounts received by them which are
applicable to the payment of obligations of any Guarantor under this Guarantee,
if the Banks, or the Agents or Collateral Agent on behalf of the Banks, exercise
their rights hereunder, including, without limitation, acceleration of the
obligations of any Guarantor hereunder, equitable adjustment will be made so
that, in effect, all such amounts will be shared among the Banks pro rata based
on the relative outstanding Guaranteed Obligations.
12. Merger. If any Guarantor shall merge into or consolidate with
another corporation, or liquidate, wind up or dissolve itself in a transaction
not prohibited by the Credit Agreement, or if all of the stock of the Guarantor
shall be sold or otherwise disposed of in a manner not prohibited by the Credit
Agreement, such Guarantor hereby covenants and agrees, that upon any such
merger, consolidation, liquidation, or dissolution, the guarantee given in this
Guarantee and the due and punctual performance and observance of all of the
covenants and conditions of the Credit Agreement to be performed by such
Guarantor, shall be expressly assumed (in the event that such Guarantor is not
the surviving corporation in the merger) by supplemental agreements satisfactory
in form to the Banks, or the Agents or Collateral Agent on behalf of the Banks,
by the corporation or corporations formed by such consolidation, or into which
such Guarantor shall have been merged, or by the corporation or corporations
which shall have acquired such property unless such sale or transfer is
permitted under Section 7.16 or Section 7.17 of the Credit Agreement in which
case the Guarantor shall be released from this Guarantee. In addition, such
Guarantor shall deliver to the Banks, or the Agents or Collateral Agent on
behalf of the Banks, an Officers' Certificate and an opinion of counsel, each
stating that such merger, consolidation or transfer and such supplemental
agreements comply with this Guarantee and that all conditions precedent herein
provided relating to such transaction have been complied with. In case of any
such consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation or corporations, by supplemental agreements executed and
delivered to the Banks or the Agents or Collateral Agent on behalf of the Banks,
and satisfactory in form to the Banks, or the Agents or Collateral Agent on
behalf of the Banks, of the guarantee given in this Guarantee and the due and
punctual performance of all of the covenants and conditions of the Credit
Agreement to be performed by such Guarantor, such successor corporation or
corporations shall succeed to and be substituted for such Guaran-
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tor, with the same effect as if it or they had been named herein as a Guarantor.
13. No Waiver. (a) No failure to exercise and no delay in
exercising, on the part of the Banks, or the Agents or Collateral Agent on
behalf of the Banks, 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 preclude any other or further exercise thereof, or the exercise of any
other power or right. The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law. (b) In the event the
Banks, the Agents or the Collateral Agent on behalf of the Banks, shall have
instituted any proceeding to enforce any right, power or remedy under this
Guarantee by sale or otherwise, and such proceeding shall have been discontinued
or abandoned for any reason or shall have been determined adversely to the
Banks, the Agents or the Collateral Agent on behalf of the Banks, then and in
every such case, each Guarantor, the Banks, the Agents or the Collateral Agent
on behalf of the Banks, and each Bank shall be restored to its respective former
position and rights hereunder, and all rights, remedies and powers of the Banks,
the Agents or the Collateral Agent on behalf of the Banks, shall continue as if
no such proceeding had been instituted.
14. Notices. All notices, demands, instructions or other
communications required or permitted to be given to or made upon any party
hereto shall be given in accordance with the provisions of the Credit Agreement
and at the address either set forth therein or as provided on the signature page
hereof.
15. Amendments, Waivers, etc. No provision of this Guarantee shall
be waived, amended, terminated or supplemented except by a written instrument
executed by each Guarantor and the Agents or Collateral Agent, on behalf of the
Banks.
16. Notice of Exercise. Upon exercise of its rights hereunder, the
Banks, or the Agents or Collateral Agent on behalf of the Banks, as the case may
be, shall provide written notice on the date of such exercise to the Banks, or
the Agents or the Collateral Agent on behalf of the Banks, as the case may be,
of such exercise; provided, however, that the failure by the Agents, the
Collateral Agent, or any of the Banks to provide such written notice shall not
in any way relieve any Guarantor of its obligations under this Guarantee.
17. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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18. CONSENT TO JURISDICTION AND SERVICE PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR WITH RESPECT TO THIS GUARANTEE MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK AND BY EXECUTION AND DELIVERY OF THIS GUARANTEE EACH GUARANTOR ACCEPTS
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTEE. THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS. EACH GUARANTOR DESIGNATES AND APPOINTS LEXIS
DOCUMENT SERVICES, INC., WITH AN ADDRESS AT 000 XXXX 00XX XXXXXX, 00XX XXXXX,
XXX XXXX, XXX XXXX 00000, AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY
ANY GUARANTOR, AFTER WRITTEN NOTICE TO THE AGENT, IRREVOCABLY AGREEING IN
WRITING TO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS
IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY EACH GUARANTOR TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO
EACH GUARANTOR AS PROVIDED IN SECTION 14 HEREOF. IF ANY AGENT APPOINTED BY ANY
GUARANTOR REFUSES TO ACCEPT SERVICE, SUCH GUARANTOR HEREBY AGREES THAT SERVICE
UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF ANY BANK TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS
OF ANY OTHER JURISDICTION.
19. Severability of Provisions. Any provision of this Guarantee
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
20. Headings. The Section headings used in this Guarantee are for
convenience of reference only and shall not affect the construction of this
Agreement.
21. Future Advances. This Guarantee shall guarantee the payment of
any amounts advanced from time to time pursuant to the Credit Agreement.
22. Release of Hercules. Upon a determination of the Board of
Directors of the Company certified to the Administrative Agent, Hercules shall
be deemed released from all obligations un-
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der this Guarantee without any further action required on the part of the Agents
or any Bank.
23. Counterparts. This Guarantee and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer on
the day and year first above written.
XXXXXX MATERIAL HANDLING, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
MATERIAL HANDLING, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
CMH MATERIAL HANDLING, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
EPH MATERIAL HANDLING, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
-14-
HARNISCHFEGER DISTRIBUTION &
SERVICE LLC
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Manager
HPH MATERIAL HANDLING, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
XXXXXX MATERIAL HANDLING, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
XXXXXX MECHANICAL HANDLING, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
MPH CRANE, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
-15-
NPH MATERIAL HANDLING, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
PHME SERVICE, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
SPH CRANE & HOIST, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
HERCULES S.A. DE C.V.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Director
MHE TECHNOLOGIES, INC.,
as a Guarantor
By: /s/ X.X. Xxxxxxxxxx, Xx.
----------------------------------
Name: X.X. Xxxxxxxxxx, Xx.
Title: President
PHMH HOLDING COMPANY,
as a Guarantor
By: /s/ X.X. Xxxxxxxxxx, Xx.
----------------------------------
Name: X.X. Xxxxxxxxxx, Xx.
Title: President
MATERIAL HANDLING EQUIPMENT
NEVADA CORPORATION,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
