EXHIBIT 2.5
GUARANTY AGREEMENT
This GUARANTY AGREEMENT, dated as of this 19th day of October, 2001
(this "AGREEMENT"), is made by GenCorp Inc., an Ohio corporation (the
"GUARANTOR"), for the benefit of Northrop Grumman Systems Corporation, a
Delaware corporation (the "PURCHASER").
RECITALS:
A. The Purchaser and Aerojet-General Corporation, an Ohio corporation
(the "SELLER"), have as of this date entered into (i) an Asset Purchase
Agreement (the "ASSET PURCHASE AGREEMENT"), and (ii) an Environmental Agreement
(together, the "GUARANTEED AGREEMENTS").
B. The Guarantor deems it to be in the direct pecuniary and business
interests of the Guarantor that the Purchaser enter into the Guaranteed
Agreements with the Seller and desires to enter into this Agreement in order to
induce the Purchaser to enter into each of the Guaranteed Agreements.
C. Capitalized terms not otherwise defined herein shall have the
meanings given to them in, or by reference in, the Asset Purchase Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby guarantees, promises and undertakes as
follows:
1. GUARANTY. The Guarantor unconditionally, absolutely and irrevocably
guarantees the timely payment and performance of each of Seller's obligations
arising out of and under the Guaranteed Agreements (such obligations, the
"GUARANTEED OBLIGATIONS"). The Guarantor's guaranty made hereby is a guaranty of
timely payment and performance of the Guaranteed Obligations and not merely of
collectability or enforceability of such obligations.
2. REMEDIES AND RIGHTS OF THE PURCHASER. The Guarantor agrees that if
and to the extent that the Seller either (a) fails to satisfy any of the
Guaranteed Obligations and fails to remedy such failure within thirty (30) days
after receiving written notice from the Purchaser of such failure, or (b) is
subject to a pending petition for relief under Chapter 6 or Chapter 11 of Title
11 of the United States Code, the Guarantor will be directly responsible for the
full extent of any unsatisfied Guaranteed Obligations. This Agreement is an
unconditional, absolute, present and continuing guaranty of payment and
performance, and will remain in full force and effect without regard to, and the
obligations of the Guarantor hereunder shall not be impaired, affected or
released by, any of the following: (i) any modification, supplement, extension
or amendment of any of the Guaranteed Obligations or the Guaranteed Agreements;
(ii) any extension, indulgence or other action in respect thereto or therefor;
(iii) any failure or delay by the Purchaser or the Seller in exercising any
right or power under any of the Guaranteed Agreements; (iv) any invalidity or
unenforceability in any respect of, or any irregularity or other defect in any
of, the Guaranteed Agreements or the Guaranteed Obligations; (v) any exercise or
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nonexercise of any right, remedy, power or privilege in respect of this
Agreement or any of the Guaranteed Obligations; (vi) any transfer of the assets
of the Purchaser to, or any consolidation or merger of the Purchaser with or
into, any other entity; (vii) any voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, receivership, insolvency, bankruptcy, reorganization or similar
proceeding affecting the Seller or any of its assets; or (viii) any allegation
or contest of the validity of this Agreement. The Guarantor acknowledges that
the rights and remedies herein provided are not exclusive of any other rights or
remedies that the Purchaser may otherwise have at law or in equity, and shall
not prejudice the Purchaser's right to assert any other claim under the
Guaranteed Agreements. The Guarantor hereby waives any defense to its
obligations hereunder that might arise as a result of any of the foregoing, and
hereby waives the effect of any fact, circumstance or event of any nature
whatsoever that would exonerate or give rise to a defense to, the obligation of
a surety or guarantor. Notwithstanding the foregoing, the Purchaser shall have
exhausted its remedies against the Seller as provided in the Guaranteed
Agreements prior to exercising its rights against Guarantor under this
Agreement.
3. DURATION OF AGREEMENT. This Agreement will continue in full force
and effect and the obligations of the Guarantor hereunder will not be discharged
until the date on which the Guaranteed Obligations are fully performed,
satisfied and discharged or until the Seller's liability to the Purchaser under
the Guaranteed Agreements shall have been completely performed, satisfied and
discharged, whichever occurs first. The Guaranteed Obligations will not be
considered fully performed, satisfied and discharged (a) unless and until all
obligations of the Seller to the Purchaser pursuant to the Guaranteed Agreements
have been fully and completely performed, satisfied and discharged, or (b) to
the extent any claim by the Purchaser against the Seller remains outstanding.
4. CORPORATION EXISTENCE AND POWER. The Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation.
5. CORPORATE AUTHORIZATION AND EXECUTION. The execution, delivery and
performance by the Guarantor of this Agreement are within the corporate powers
of the Guarantor and have been duly authorized by all necessary corporate action
on the part of the Guarantor. This Agreement constitutes a valid and binding
agreement of the Guarantor enforceable in accordance with its terms, except as
(a) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
6. GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
of the Guarantor of this Agreement require no approval, consent, waiver,
authorization or other action by or in respect of, or filing, registration or
recording with, any governmental body, agency or official, except for any such
approval, consent, waiver, authorization, or other action or filing,
registration or recordings as to which the failure to make or obtain would not,
individually or in the aggregate, have a Material Adverse Effect on the
Guarantor and its subsidiaries, taken as a whole, or on the obligations of the
Guarantor under this Agreement.
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7. NON-CONTRAVENTION. The execution, delivery and performance by the
Guarantor of this Agreement do not and will not (a) violate the articles of
incorporation or code of regulations of the Guarantor, (b) violate any law,
rule, regulation, judgment, injunction, order or decree applicable to the
Guarantor or (c) require any approval, consent, waiver, authorization, or other
action by, or filing, registration or recording with, any Person under,
constitute a breach or default under, or give rise to any material obligation of
the Guarantor under any agreement or other instrument binding upon the
Guarantor, except to the extent that any such approval, consent, waiver,
authorization or other action, default, obligation or modification would not,
individually or in the aggregate, have a Material Adverse Effect on the
Guarantor and its subsidiaries, taken as a whole.
8. LITIGATION. There is no action, suit or proceeding pending against,
or to the knowledge of the Guarantor, threatened against or affecting, the
Guarantor before any court or arbitrator or any governmental body, agency or
official, which, individually or in the aggregate, is reasonably likely to have
a Material Adverse Effect on the Guarantor and its subsidiaries, taken as a
whole.
9. NO ASSIGNMENT. The rights and obligations of the Guarantor or the
Purchaser hereunder may not be assigned without the prior written consent of the
other party. Any purported assignment in violation of this section shall be null
and void. All representations, warranties, covenants, agreements and
acknowledgments in this Agreement made by and on behalf of the Guarantor or the
Purchaser shall bind and inure to the benefit of their respective successors and
permitted assigns.
10. INTEGRATION; MODIFICATION; WAIVER. This Agreement and the
Guaranteed Agreements constitute the entire agreement between the Guarantor and
the Purchaser with respect to the subject matter hereof and supersede all prior
understandings between them. No supplement, modification or amendment of this
Agreement will be binding unless executed in writing by the Guarantor and
acknowledged and accepted in writing by the Purchaser or its permitted assign.
No waiver of any of the provisions of this Agreement will be deemed to be or
shall constitute a continuing waiver. No waiver will be binding unless executed
in writing by the party making the waiver.
11. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights or remedies upon any Person other than the Purchaser and its
successors and permitted assigns.
12. GOVERNING LAW. This Agreement will be governed in all respects by
the laws of the State of New York without regard to conflicts of law principles.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed by an authorized officer as of the date first above written.
GENCORP INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
Acknowledged and accepted as of the date hereof.
NORTHROP GRUMMAN SYSTEMS CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Corporate Vice President and Secretary
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