Exhibit 10.3
GUARANTY
This GUARANTY (this "GUARANTY"), dated as of February 1, 2002, by
and between Precision Partners Holding Company, a Delaware corporation
("GUARANTOR"), and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation,
individually and as agent (in such capacity, "AGENT") for the lenders from time
to time signatory to the Credit Agreement, as hereinafter defined.
W I T N E S S E T H:
Reference is made to that certain Credit Agreement, dated as even
herewith (as amended, restated, supplemented, or otherwise modified from time to
time, the "CREDIT AGREEMENT"), by and among (a) PRECISION PARTNERS, INC., a
Delaware corporation ("PRECISION"), GALAXY INDUSTRIES CORPORATION, a Michigan
corporation ("GALAXY"), MID STATE MACHINE PRODUCTS, a Maine corporation ("MID
STATE"), NATIONWIDE PRECISION PRODUCTS CORP., a New York corporation
("NATIONWIDE"), GENERAL AUTOMATION, INC., an Illinois corporation ("GA"),
XXXXXXXX MACHINE & TOOL CO., INC., a New York corporation ("XXXXXXXX"), GALAXY
PRECISION PRODUCTS CORP., a Delaware corporation ("GPPC") and CERTIFIED
FABRICATORS, INC., a California corporation ("CERTIFIED") (Precision, Galaxy,
Mid State, Nationwide, GA, Xxxxxxxx, GPPC, and Certified, together with their
permitted successors and assigns being sometimes hereinafter called
collectively, the "BORROWERS"); (b) the Guarantor; (c) the Agent, (d) General
Electric Capital Corporation, in its capacity as revolving credit agent
(together with any successor thereto appointed pursuant to the Credit Agreement,
the "REVOLVING CREDIT AGENT"), (e) GECC Capital Markets, Inc., as Lead Arranger
and (f) the Lenders, as hereinafter defined. Capitalized terms used in this
Agreement and not otherwise defined herein shall have the meaning ascribed
thereto in the Credit Agreement.
Pursuant to the terms of the Credit Agreement, (i) General Electric
Capital Corporation, as revolving lender (together with any and all assignees or
transferees thereof or successors thereto, the "REVOLVING LENDERS") has agreed
to make available to the Borrowers a Revolving Loan facility pursuant to which
the Revolving Lenders will from time to time make available to the Borrowers
advances and letters of credit in an aggregate amount not to exceed $25,000,000
at any one time outstanding, (ii) GENERAL ELECTRIC CAPITAL CORPORATION and
ABLECO FINANCE LLC, as term lenders (together with any and all assignees or
transferees thereof or successors thereto, the "TERM LENDERS") have agreed to
make available to the Borrowers a Term Loan in the aggregate principal amount of
$44,050,000, and (iii) GENERAL ELECTRIC CAPITAL CORPORATION as lessor (together
with any and all assignees or transferees thereof or successors thereto, the
"LESSORS") have agreed to lease certain equipment to certain Borrowers pursuant
to the Master Lease (the "MASTER LEASE") (the Term Lenders, the Revolving
Lenders and the Lessors being hereinafter called collectively, the "LENDERS").
Guarantor directly or indirectly owns 100% of the outstanding Stock
of Borrowers and as such will derive direct and indirect economic benefits from
the making of the Loan and other Credit Accommodations provided to Borrowers
pursuant to the Credit Agreement and the Master Lease.
In order to induce Agent and Lenders to enter into the Credit
Agreement, the Master Lease and other Operative Documents and to induce Lenders
to make the Loan and other Credit Accommodations as provided for in the Credit
Agreement and the Master Lease, Guarantor has 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 Loan and other
Credit Accommodations under the Credit Agreement and the Master Lease, 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 "Guaranty" shall mean this Guaranty, including all
amendments, modifications and supplements and any annexes, exhibits and
schedules to any of the foregoing, and shall refer to this 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. Guarantor hereby
unconditionally guarantees to Agent and Lenders, and their respective permitted
successors, endorsees, transferees and assigns, the prompt payment (whether at
stated maturity, by acceleration or otherwise) of the Obligations of Borrowers
(hereinafter the "Guaranteed Obligations") and agrees to pay any and all
expenses (including reasonable counsel fees and expenses) incurred by the Agent
and Lenders in enforcing any rights under this Guaranty. Guarantor agrees that
this Guaranty is a guaranty of payment and not of collection, and that its
obligations under this 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 Guaranty, any other Operative Document or
any other agreement, document or instrument to which any Credit Party and/or
Guarantor is or may become a party;
(b) the absence of any action to enforce this Guaranty or any other
Operative Document or the waiver or consent by Agent and/or Lenders with respect
to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect
Agent's 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 Guarantor that its obligations under this Guaranty shall not
be discharged until the Termination Date. Guarantor shall be regarded, and shall
be in the same position, as principal debtor with respect to the Guaranteed
Obligations. 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 and Lenders. It is
agreed among Guarantor, Agent and Lenders that the foregoing waivers are of the
essence of the transaction contemplated by the Operative Documents and that, but
for this Guaranty and such waivers, Agent and Lenders would decline to enter
into the Credit Agreement and the Master Lease.
2.2. Demand by 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 and the Master Lease (including all accrued interest thereon) is
declared to be immediately due and payable, then Guarantor shall, upon demand,
pay to the holders of the Guaranteed Obligations the entire outstanding
Guaranteed Obligations due and owing to such holders. Payment by Guarantor shall
be made to Agent for the benefit of Lenders in immediately available 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 Borrowers or any
other Credit Party or any Collateral pledged to secure Guaranteed Obligations
before seeking satisfaction from the Guarantor, 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,
Guarantor waives and agrees that it 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 Guarantor of its Guaranteed
Obligations under, or the enforcement by Agent or Lenders of, this Guaranty.
Guarantor hereby waives 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 Borrowers' financial condition or any other fact which might increase the
risk to Guarantor) with respect to any of the Guaranteed Obligations and this
Guaranty. Guarantor represents, warrants and agrees that, as of the date of this
Guaranty, its obligations under this Guaranty are not subject to any offsets or
defenses against Agent or Lenders or any Credit Party of any kind. Guarantor
further agrees that its obligations under this Guaranty shall not be subject to
any counterclaims, offsets or defenses against 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 Guaranty are for the
benefit of Agent and Lenders and their respective permitted successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any Credit Party and Agent or Lenders, the obligations of any Credit
Party under the Operative Documents. In the event all or any part of the
Guaranteed Obligations are transferred, indorsed or assigned by Agent or any
Lender to any Person or Persons, in accordance with the terms of the Credit
Agreement and the Master Lease, 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. Guarantor hereby
acknowledges and agrees that Agent and Lenders may at any time or from time
to time, with or without the consent of, or notice to, Guarantor:
(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 Operative 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 Operative
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 Operative 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 or Lenders have been granted a Lien, to secure any Guaranteed Obligations;
(f) release anyone who may be liable in any manner for the
payment of any amounts owed by Guarantor or any Credit Party to Agent or any
Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of Guarantor
or any Credit Party are subordinated to the claims of Agent and Lenders; and/or
(h) apply any sums by whomever paid or however realized to any
amounts owing by Guarantor or any Credit Party to Agent or any Lender in such
manner as Agent or any Lender shall determine in its discretion; and Agent and
Lenders shall not incur any liability to Guarantor as a result thereof, and no
such action shall impair or release the Guaranteed Obligations of Guarantor
under this Guaranty.
2.7 Contribution with Respect to Obligations.
a. To the extent that the Guarantor shall make a payment of all or
any of the Obligations (a "Payment") which, taking into account all other
Payments then previously or concurrently made by any other Credit Party, exceeds
the amount which the Guarantor would otherwise have paid if each Credit Party
had paid the aggregate Obligations satisfied by such Payment in the same
proportion the Guarantor's "Allocable Amount" (as defined below) (as determined
immediately prior to such Payment) bore to the aggregate Allocable Amounts of
each of the Credit Parties as determined immediately prior to the making of such
Payment, then, following payment in full in cash of the Obligations and
termination of the Commitments, the Guarantor shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each other
Credit Party for the amount of such excess, pro rata based upon their respective
Allocable Amounts in effect immediately prior to such Payment; provided however,
that nothing in this Section 2.7 shall permit the Guarantor to make any payments
otherwise prohibited by the terms of the Operative Documents.
b. As of any date of determination, the "Allocable Amount" of the
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from the Guarantor under this Section 12 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 2.7 is intended only to define the rights of the
Guarantor and nothing set forth in this Section 2.7 is intended to or shall
impair the obligation of the Guarantor to pay any amounts as and when the same
shall become due and payable in accordance with the terms of this Agreement.
Nothing contained in this Section 2.7 shall limit the liability of any Borrower
to pay the Loans made directly or indirectly to that Borrower and accrued
interest, Fees and expenses with respect thereto for which such Borrower shall
be primarily liable.
d. The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
2.8. Reinstatement. This 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 Guarantor for liquidation or reorganization, should any Credit
Party or Guarantor become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of such Credit Party's or Guarantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment 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 Agent or any Lender, whether 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.
2.9. Deferral of Subrogation, Etc. Notwithstanding anything to the
contrary in this Guaranty, or in any other Operative Document, and except as set
forth in Section 2.7 hereof, Section 12.7 of the Credit Agreement or other
contribution agreements among the Credit Parties not prohibited by any Operative
Document, Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and its
successors and assigns (including any surety) until the Termination Date, 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 Guarantor may have
or hereafter acquire against any Credit Party in connection with or as a result
of Guarantor's execution, delivery and/or performance of this Guaranty, or any
other documents to which Guarantor is a party or otherwise;
(b) acknowledges and agrees (i) that this waiver is intended to
benefit Agent and Lenders and shall not limit or otherwise effect Guarantor's
liability hereunder or the enforceability of this 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
(c) the Agent agrees on behalf of Lenders that if (i) the Guarantor
shall pay to the Agent all of the Guaranteed Obligations, and (ii) the
Termination Date shall have occurred, the Agent and the Lenders will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer or subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from the payment made by the
Guarantor under this Guaranty.
2.10. Election of Remedies. If Agent may, under applicable law, proceed to
realize benefits under any of the Operative Documents giving 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 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 Guaranty. If, in the
exercise of any of its rights and remedies, Agent 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, Guarantor hereby consents to such action by Agent and
waives any claim based upon such action, even if such action by Agent shall
result in a full or partial loss of any rights of subrogation which Guarantor
might otherwise have had but for such action by Agent. Any election of remedies
which results in the denial or impairment of the right of Agent to seek a
deficiency judgment against any Credit Party shall not impair Guarantor's
obligation to pay the full amount of the Guaranteed Obligations. In the event
Agent shall bid at any foreclosure or trustee's sale or at any private sale
permitted by law or the Operative Documents, Agent may bid all or less than the
amount of the Guaranteed Obligations and the amount of such bid need not be paid
by Agent 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 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
and Lenders might otherwise be entitled but for such bidding at any such sale.
2.11. Funds Transfers. If Guarantor shall engage in any transaction as a
result of which Borrowers are required to make a mandatory prepayment with
respect to the Guaranteed Obligations under the terms of the Credit Agreement or
the Master Lease (including any issuance or sale of such Guarantor's Stock or
any sale of its assets), Guarantor shall distribute to, or make a contribution
to the capital of, the Borrowers an amount equal to the mandatory prepayment
required under the terms of the Credit Agreement or the Master Lease.
3. DELIVERIES.
In a form satisfactory to Agent, Guarantor shall deliver to Agent (with
sufficient copies for each Lender), concurrently with the execution of this
Guaranty, the Credit Agreement and the Master Lease, the Operative Documents and
other instruments, certificates and documents as are required to be delivered by
Guarantor to Agent under the Credit Agreement and the Master Lease.
4. REPRESENTATIONS AND WARRANTIES.
To induce Lenders to make the Loan and other Credit Accommodations under
the Credit Agreement and the Master Lease, Guarantor makes the representations
and warranties as to Guarantor contained in the Credit Agreement and the Master
Lease, each of which is incorporated herein by reference, and the following
representations and warranties to Agent and each Lender, each and all of which
shall survive the execution and delivery of this Guaranty:
4.1. Corporate Existence; Compliance with Law. Guarantor (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) is duly qualified to do business and
is in good standing under the laws of the 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 a material
adverse effect upon the properties, business, or financial condition of
Guarantor; (iii) subject to the specific representations regarding Environmental
Laws in Section 3.17 of the Credit Agreement, has the requisite corporate power
and authority and the legal right to own, pledge and mortgage its properties;
(iv) has all licenses, permits, consents or approvals from or by, and has made
all material filings with, and has given all notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct the lack of which would have a material adverse effect on
the properties, business or financial condition of Guarantor; (v) is in
compliance with its charter and by-laws; 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. Corporate Power; Authorization; Enforceable Guaranteed Obligations.
The execution, delivery and performance of this Guaranty and all other Operative
Documents and all instruments and documents to be delivered by Guarantor
hereunder and under the Credit Agreement and the Master Lease are within
Guarantor's corporate power, have been duly authorized by all necessary
corporate action, including the consent of stockholders where required, are not
in contravention of any provision of Guarantor's charter or by-laws, do not
violate any law or regulation, or any order or decree of any Governmental
Authority, 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 Guarantor is a party or by which Guarantor or any of its
property is bound, do not result in the creation or imposition of any Lien upon
any of the property of Guarantor, other than those in favor of Agent, for itself
and the benefit of Lenders and Permitted Encumbrances, and the same do not
require the consent or approval of any Governmental Authority or any other
Person except those referred to in Section 2.1(c) of the Credit Agreement, all
of which have been duly obtained, made or complied with prior to the Closing
Date. On or prior to the Closing Date, this Guaranty and each of the Operative
Documents to which Guarantor is a party shall have been duly executed and
delivered for the benefit of or on behalf of Guarantor, and each shall then
constitute a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles (whether enforcement is sought by proceeding in
equity or at law).
5. FURTHER ASSURANCES.
Guarantor agrees, upon the written request of Agent or any Lender, to
execute and deliver to Agent or such Lender, from time to time, any additional
instruments or documents reasonably considered necessary by Agent or such Lender
to cause this 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 Guarantor hereunder shall be made to
Agent and Lenders free and clear of, and without deduction for, any and all
present and future Taxes. If 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 or Lenders, as applicable, receive an amount equal to the
sum they would have received had no such deductions been made, (b) Guarantor
shall make such deductions, and (c) 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, Guarantor shall
furnish to Agent the original or a certified copy of a receipt evidencing
payment thereof. Guarantor shall indemnify and, within ten (10) Business Days of
demand therefor, pay Agent and each Lender for the full amount of Taxes
(including any Taxes imposed by any jurisdiction on amounts payable under this
Section 6) paid by Agent or such Lender, as appropriate, and any liability
(including penalties, interest and reasonable 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 Guaranty, together with the other Operative
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 Loan and other Credit Accommodations and advances under the
Operative Documents and/or the Guaranteed Obligations.
7.2. Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.
7.3. Severability. Whenever possible, each provision of this Guaranty
shall be interpreted in such a manner to be effective and valid under applicable
law, but if any provision of this 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 Guaranty.
7.4 Right of Set-off. Upon the occurrence and during the continuance of
any Event of Default, the Agent or any Lender may, and is hereby authorized to,
at any time and from time to time, without notice to the Guarantor (any such
notice being expressly waived by the Guarantor) and to the fullest extent
permitted by law, set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Agent or any Lender to or for the credit or the account of
the Guarantor against any and all obligations of the Guarantor now or hereafter
existing under this Guaranty, irrespective of whether or not the Agent or any
Lender shall have made any demand under this Guaranty and although such
obligations may be contingent or unmatured. The Agent and each Lender agree to
notify the Guarantor promptly after any such set-off and application made by the
Agent or such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Agent and
the Lenders under this Section 7.4 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which Agent and Lenders
may have.
7.5. 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 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, at:
General Electric Capital Corporation
000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention:
Telecopy Number: (___)
with copies to:
Ober, Kaler, Xxxxxx & Xxxxxxx
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopy Number: (000) 000-0000
(b) If to any Lender, at the address of such Lender specified in the
Credit Agreement or any Assignment Agreement.
(c) If to Guarantor, at the address of such Guarantor specified on
Schedule I to the Credit Agreement, 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
7.5), (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.
7.6. Successors and Assigns. This Guaranty and all obligations of
Guarantor hereunder shall be binding upon the successors and assigns of
Guarantor (including a debtor-in-possession on behalf of Guarantor) and shall,
together with the rights and remedies of Agent, for the benefit of Lenders,
hereunder, inure to the benefit of Agent and Lenders, all permitted future
holders of any instrument evidencing any of the Obligations and their respective
permitted 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
made in accordance with the Operative Documents shall in any manner affect the
rights of Agent and Lenders hereunder. Guarantor may not assign, sell,
hypothecate or otherwise transfer any interest in or obligation under this
Guaranty.
7.7. No Waiver; Cumulative Remedies; Amendments. Neither Agent nor 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 Guarantor and then only to the extent therein set
forth. A waiver by Agent, for itself and the ratable benefit of 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 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 Guaranty may be waived, altered, modified,
supplemented or amended except by an instrument in writing, duly executed by
Agent and Guarantor.
7.8. Termination. This Guaranty is a continuing guaranty and shall
remain in full force and effect until the Termination Date. Upon payment in
full of the Guaranteed Obligations, Agent shall deliver to Guarantor such
documents as Guarantor may reasonably request to evidence such termination.
7.9. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one
and the same agreement.
8. SECURITY.
To secure payment of Guarantor's obligations under this Guaranty,
concurrently with the execution of this Guaranty, Guarantor has entered into a
Security Agreement pursuant to which the Guarantor has granted to Agent for the
benefit of Lenders a security interest in substantially all of its personal
property and a Pledge Agreement pursuant to which Guarantor has pledged all of
the Stock of Precision to Agent for the benefit of Lenders.
9. GOVERNING LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE OPERATIVE DOCUMENTS,
IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER 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
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THE GUARANTOR HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY,
CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GUARANTOR, AGENT AND LENDERS PERTAINING
TO THIS GUARANTY OR ANY OF THE OTHER OPERATIVE DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER OPERATIVE
DOCUMENTS, PROVIDED THAT AGENT, LENDERS AND GUARANTOR ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW
YORK COUNTY, CITY OF NEW YORK, NEW YORK, AND, PROVIDED, FURTHER, NOTHING IN THIS
GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF AGENT. THE GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND GUARANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH GUARANTOR AT THE ADDRESS SET
FORTH ON ANNEX I TO THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3)
BUSINESS DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
10. WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES ARISING HEREUNDER OR
RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, AMONG AGENT, LENDERS, AND GUARANTOR ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER OPERATIVE DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guaranty as of the date first above written.
PRECISION PARTNERS HOLDING COMPANY
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, individually and as Agent
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
