EXHIBIT 10.2
MASTER AGREEMENT OF GUARANTY AND SURETYSHIP
This Master Agreement of Guaranty and Suretyship (the "Guarantee") is
made and entered into this 13th day of March, 1997, by and between the
undersigned corporations, with their respective principal offices as set
forth on Schedule 1.1(b) of the Credit Agreement, or as otherwise notified
from time to time pursuant to the Credit Agreement (collectively the
"Guarantors" and individually a "Guarantor"), in favor of PNC Bank, National
Association, a national banking association (the "Bank").
BACKGROUND
In order to induce the Bank to make and continue to make Loans to Xxxxx &
Xxxxx Company, a Delaware corporation (the "Borrower"), in accordance with
that certain Credit Agreement dated March 13, 1997 (as it may hereafter from
time to time be amended, restated, modified or supplemented, the "Credit
Agreement") by and between the Borrower, the Guarantors and the Bank, each of
the undersigned Guarantors hereby unconditionally and irrevocably guarantees
and becomes surety as though it was a primary obligor for the full and timely
payment when due, whether at maturity, by declaration, acceleration or
otherwise, of the principal of and interest and fees on the Loans (as defined
in the Credit Agreement), of the Bank to the Borrower under the Credit
Agreement and the Note issued by the Borrower in connection therewith and any
extensions or renewals thereof, and each and every other obligation or
liability (both those now in existence and those that shall hereafter arise
and including, without limitation, all costs and expenses of enforcement and
collection after the occurrence and during the continuance of an Event of
Default, including reasonable attorney's fees) of the Borrower to the Bank
under the Credit Agreement and the other Loan Documents (as defined in the
Credit Agreement) except this Guarantee, and any extensions or renewals
thereof (hereinafter referred to as the "Guaranteed Indebtedness"), whether
or not such Guaranteed Indebtedness or any portion thereof shall hereafter be
released or discharged or is for any reason invalid or unenforceable.
1. Capitalized terms used herein and not otherwise defined herein shall
have such meanings given to them in the Credit Agreement.
2. Each Guarantor agrees to make such full payment forthwith upon
demand of the Bank when the Guaranteed Indebtedness or any portion thereof is
due to be paid by the Borrower to the Bank, whether at stated maturity, by
declaration, acceleration or otherwise. Each Guarantor agrees to make such
full payment irrespective of whether or not any one or more of the following
events has occurred: (i) the Bank has made any demand on the Borrower or any
other guarantor; (ii) the Bank has taken any action of any nature against the
Borrower or any other guarantor; (iii) the Bank has pursued any rights which
it has against any other Person who may be liable for the Guaranteed
Indebtedness; (iv) the Bank holds or has resorted to any security for the
Guaranteed Indebtedness; or (v) the Bank has invoked any other remedy or
right it has available with respect to the Guaranteed Indebtedness. Each
Guarantor further agrees to
make full payment to the Bank even if circumstances exist which otherwise
constitute a legal or equitable discharge of the Guarantor as surety or
guarantor.
3. Each Guarantor warrants to the Bank that: (i) no other agreement
(other than the Credit Agreement and the Loan Documents), representation or
special condition exists between the Guarantor and the Bank regarding the
liability of such Guarantor hereunder, nor does any understanding exist
between such Guarantor and the Bank that the obligations of the Guarantor
hereunder are or will be other than as set forth herein; and (ii) as of the
date hereof, such Guarantor has no defense whatsoever to any action or
proceeding that may be brought to enforce this Guarantee.
4. Until indefeasible payment in full of the Loans and termination of
all Letters of Credit and the Commitment, each Guarantor waives and agrees
not to enforce any of the rights of the Guarantor against the Borrower or any
other guarantor which arise as a result of this Guarantee, including, but not
limited to: (i) any right of the Guarantor to be subrogated in whole or in
part to any right or claim with respect to any Guaranteed Indebtedness or any
portion thereof to the Bank which might otherwise arise from payment by the
Guarantor to the Bank on the account of the Guaranteed Indebtedness or any
portion thereof until all the Guaranteed Indebtedness is indefeasibly paid in
full; and (ii) any right of the Guarantor to require the marshalling of
assets of the Borrower or any other guarantor which might otherwise arise
from payment by the Guarantor to the Bank on account of the Guaranteed
Indebtedness or any portion thereof. If any amount shall be paid to any
Guarantor in violation of the preceding sentence, such amount shall be deemed
to have been paid to the Guarantor for the benefit of, and held in trust for
the benefit of, the Bank and shall forthwith be paid to the Bank to be
credited and applied upon the Guaranteed Indebtedness, whether matured or
unmatured, in accordance with the terms of the Credit Agreement. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by the Credit Agreement and that the
waivers set forth in this Section are knowingly made in contemplation of such
benefits.
5. Each Guarantor waives promptness and diligence by the Bank with
respect to his rights under the Credit Agreement or any of the other Loan
Documents, including, but not limited to, this Guarantee.
6. Each Guarantor waives any and all notice with respect to: (i)
acceptance by the Bank of this Guarantee; (ii) the provisions of any note,
instrument or agreement relating to the Guaranteed Indebtedness; and (iii)
any default in connection with the Guaranteed Indebtedness.
7. Each Guarantor waives any presentment, demand, notice of dishonor or
nonpayment, protest, and notice of protest in connection with the Guaranteed
Indebtedness.
8. Each Guarantor agrees that the Bank may from time to time and as
many times as the Bank, in its sole discretion, deems appropriate, do any of
the following without notice to such Guarantor and without adversely
affecting the validity or enforceability of this Guarantee: (i) release,
surrender, exchange, compromise, or settle the Guaranteed Indebtedness or any
portion thereof; (ii) change, renew, or waive the terms of the Guaranteed
Indebtedness or any portion thereof; (iii) change, renew, or waive the terms,
including without limitation, the rate of
interest charged to the Borrower or the Guarantor, of any note, instrument,
or agreement relating to the Guaranteed Indebtedness or any portion thereof;
(iv) grant any extension or indulgence with respect to the payment to the
Bank of the Guaranteed Indebtedness or any portion thereof; (v) enter into
any agreement of forbearance with respect to the Guaranteed Indebtedness or
any portion thereof; (vi) release, surrender, exchange or compromise any
security held by the Bank for the Guaranteed Indebtedness; (vii) release any
Person who is a guarantor or surety or who has agreed to purchase the
Guaranteed Indebtedness or any portion thereof; and (viii) release,
surrender, exchange or compromise any security or Lien held by the Bank for
the liabilities of any Person who is a guarantor or surety for the Guaranteed
Indebtedness or any portion thereof. Each Guarantor agrees that the Bank may
do any of the above as it deems necessary or advisable, in its sole
discretion, without giving any notice to the Guarantor, and that the
Guarantor will remain liable for full payment to the Bank of the Guaranteed
Indebtedness.
9. If any amount owing hereunder shall have become due and payable (by
acceleration or otherwise) and an Event of Default has occcured and is
continuing, the Bank and any branch, subsidiary or affiliate of the Bank
anywhere in the world shall each have the right, at any time and from time to
time to the fullest extent permitted by Law, in addition to all other rights
and remedies available to it, without prior notice to any Guarantor, to
set-off against and to appropriate and apply to such due and payable amounts
any debt owing to, and any other funds held in any manner for the account of
the Guarantor by the Bank or any such branch, subsidiary or affiliate
including, without limitation, all funds in all deposit accounts (whether
time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by the Guarantor with the
Bank or such branch, subsidiary or affiliate. Such right shall exist whether
or not the Bank shall have given notice or made any demand hereunder or under
any of the Note or any other Loan Document, whether or not such debt owing to
or funds held for the account of any Guarantor is or are matured or
unmatured, and regardless of the existence or adequacy of any collateral,
guarantee or any other security, right or remedy available to the Bank. Each
Guarantor hereby consents to and confirms the foregoing arrangements, and
confirms the Bank's rights and each such branch's, subsidiary's and
affiliate's rights of banker's lien and set-off.
10. Each Guarantor recognizes and agrees that the Borrower, after the
date hereof, may incur additional Indebtedness or other obligations, fees and
expenses to the Bank under the Credit Agreement or pay existing Guaranteed
Indebtedness, and that in any such transaction, even if such transaction is
not now contemplated, the Bank will rely in any such case upon this Guarantee
and the enforceability thereof against the Guarantor and that this Guarantee
shall remain in full force and effect with respect to such Indebtedness of
the Borrower to the Bank and such Indebtedness shall for all purposes
constitute Guaranteed Indebtedness.
11. Each Guarantor further agrees that, if at any time all or any part
of any payment, from whomever received, theretofore applied by the Bank to
any of the Guaranteed Indebtedness is or must be rescinded or returned by the
Bank for any reason whatsoever including, without limitation, the insolvency,
bankruptcy or reorganization of the Guarantor, such liability shall, for the
purposes of this Guarantee, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the
Bank, and this Guarantee shall continue to be effective or be reinstated, as
the case may be, as to such liabilities, all as though such application by
the Bank had not been made.
12. Each Guarantor agrees that no failure or delay on the part of the
Bank to exercise any of its rights, powers or privileges under this Guarantee
shall be a waiver of such rights, powers or privileges or a waiver of any
default, nor shall any single or partial exercise of any of the Bank's
rights, powers or privileges preclude other or further exercise thereof or
the exercise of any other right, power or privilege or be construed as a
waiver of any default. Each Guarantor further agrees that no waiver or
modification of any rights of the Bank under this Guarantee shall be
effective unless in writing and signed by the Bank. Each Guarantor further
agrees that each written waiver shall extend only to the specific instance
actually recited in such written waiver and shall not impair the rights of
the Bank in any other respect.
13. Each Guarantor unconditionally agrees to pay all reasonable costs and
expenses, including reasonable attorney's fees, incurred after the occurrence of
and during the continuance of an Event of Default by the Bank in enforcing this
Guarantee against such Guarantor.
14. Each Guarantor agrees that this Guarantee and the rights and
obligations of the parties hereto shall for all purposes be governed by
and construed and enforced in accordance with the substantive law of the
Commonwealth of Pennsylvania without giving effect to its principles of
conflict of laws.
15. Each Guarantor recognizes that this Guarantee when executed
constitutes a sealed instrument and as a result the instrument will be
enforceable as such without regard to any statute of limitations which might
otherwise be applicable and without any consideration.
16. Each Guarantor acknowledges that in addition to binding itself to
this Guarantee, at the time of execution of this Guarantee the Bank offered
to the Guarantor a copy of this Guarantee in the form in which it was
executed and that by acknowledging this fact the Guarantor may not later be
able to claim that a copy of the Guarantee was not received by it.
17. Each Guarantor agrees that this Guarantee shall be binding upon each
Guarantor, its successors and assigns; PROVIDED, HOWEVER, that the Guarantor
may not assign or transfer any of its rights and obligations hereunder or any
interest herein. Each Guarantor further agrees that (i) this Guarantee is
freely assignable and transferable by the Bank in connection with any
assignment or transfer of the Guaranteed Indebtedness in accordance with the
Credit Agreement and (ii) this Guarantee shall inure to the benefit of the
Bank, its successors and assigns. Upon indefeasible payment in full of the
Guaranteed Indebtedness, this Guarantee shall terminate and be of no further
effect and the Bank shall execute any documents, instruments, agreements or
any combination thereof as the Guarantors shall reasonably request to
evidence such termination.
18. Each Guarantor agrees that if such Guarantor fails to perform any
covenant or agreement hereunder or if there occurs an Event of Default under
the Credit Agreement, all or any part of the Guaranteed Indebtedness may be
declared to be forthwith due and payable and, in the case of an Event of
Default described in Sections 9.1.14 or 9.1.15 of the Credit Agreement,
the Guaranteed Indebtedness shall be immediately due and payable, in any case
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
19. Each Guarantor agrees that the enumeration of the Bank's rights and
remedies set forth in this Guarantee is not intended to be exhaustive and the
exercise by the Bank of any right or remedy shall not preclude the exercise
of any other rights or remedies, all of which shall be cumulative and shall
be in addition to any other right or remedy given hereunder or under any
other agreement among the parties to the Loan Documents or which may now or
hereafter exist at law or in equity or by suit or otherwise.
20. Each Guarantor agrees that all notices, statements, requests,
demands and other communications under this Guarantee shall be given to the
Guarantor at the address set forth in Schedule 1.1(B) to the Credit Agreement
in the manner provided in Section 11.6 of the Credit Agreement.
21. Each Guarantor agrees that the provisions of this Guarantee are
severable, and in an action or proceeding involving any state or federal
bankruptcy, insolvency or other law affecting the rights of creditors
generally:
(a) if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part
thereof, in such jurisdiction and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or
provision in this Guarantee in any jurisdiction.
(b) if this Guarantee would be held or determined to be void, invalid
or unenforceable on account of the amount of the Guarantor's aggregate
liability under this Guarantee, then, notwithstanding any other
provision of this Guarantee to the contrary, the aggregate amount of
such liability shall, without any further action by the Bank, the
Guarantor or any other Person, be automatically limited and reduced to
the highest amount which is valid and enforceable as determined in
such action or proceeding, which (without limiting the generality of
the foregoing) may be an amount which is not greater than the greater
of:
(A) the fair consideration actually received by the Guarantor
under the terms of and as a result of the Loan Documents, including, without
limiting the generality of the foregoing, and to the extent not inconsistent
with applicable federal and state laws affecting the enforceability of
guarantees, distributions or advances made to the Guarantor with the proceeds
of any credit extended under the Loan Documents in exchange for its guaranty
of the Guaranteed Indebtedness, or
(B) ninety-five percent (95%) of the excess of (1) the amount
of the fair saleable value of the assets of the Guarantor as of the date of
this Guarantee as determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors as in effect on
the date thereof over (2) the amount of all liabilities of the
Guarantor as of the date of this Guarantee, also as determined on the basis
of applicable federal and state laws governing the insolvency of debtors as
in effect on the date thereof.
22. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTEE. EACH GUARANTOR (i) ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED
BY COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS GUARANTEE
(ii) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND EXECUTION AND
DELIVERY HEREOF BY THE GUARANTOR, AND (iii) ACKNOWLEDGES THAT THE ENTERING
INTO OF THE CREDIT AGREEMENT BY THE BANK HAS BEEN INDUCED BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION.
Each Guarantor (i) hereby irrevocably submits to the nonexclusive
jurisdiction of the Court of Common Pleas of Allegheny County, Commonwealth
of Pennsylvania, or any successor to said court, and to the nonexclusive
jurisdiction of the United States District Court for the Western District of
Pennsylvania, or any successor to said court (hereinafter referred to as the
"Pennsylvania Courts") for purposes of any suit, action or other proceeding
which relates to this Guarantee or any other Loan Document, (ii) to the
extent permitted by applicable Law, hereby waives and agrees not to assert by
way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that he is not personally subject to the jurisdiction
of the Pennsylvania Courts; that such suit, action or proceeding is brought
in an inconvenient forum; that the venue of such suit, action or proceeding
is improper; or that this Guarantee or any Loan Document may not be enforced
in or by the Pennsylvania Courts, (iii) hereby agrees not to seek, and hereby
waives, any collateral review by any other court, which may be called upon to
enforce the judgment of any of the Pennsylvania Courts, of the merits of any
such suit, action or proceeding or the jurisdiction of the Pennsylvania
Courts, and (iv) waives personal service of any and all process upon it and
consents that all such service of process may be made by certified or
registered mail addressed as provided in Schedule 1.1(B) of the Credit
Agreement and service so made shall be deemed to be completed upon actual
receipt thereof. Nothing herein shall limit the Bank's right to bring any
suit,
action or other proceeding against any Guarantor or any of the Guarantor's
assets or to serve process on the Guarantor by any means authorized by Law.
[SIGNATURES BEGIN ON THE NEXT PAGE.]
[SIGNATURE PAGE 1 OF 1 TO MASTER AGREEMENT OF GUARANTY AND SURETYSHIP]
IN WITNESS WHEREOF, the Guarantors intending to be legally bound, have
executed this Guarantee as of the date first above written with the intention
that this Guarantee shall constitute a sealed instrument.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I
ATTACHED HERETO
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
Senior Vice President and Chief
Financial Officer of each of the
Subsidiaries listed on Schedule I
attached hereto
