SUBSIDIARY GUARANTY AGREEMENT
This Subsidiary Guaranty Agreement (the "Guaranty") dated as of February
24, 1998, by the parties who have executed this Guaranty (such parties, along
with any other parties who execute and deliver to the Agent hereinafter
identified and defined an agreement in the form attached hereto as Exhibit A,
being herein referred to collectively as the "Guarantors" and individually as a
"Guarantor").
WITNESSETH:
WHEREAS, each of the Guarantors is a direct or indirect subsidiary of
Eagle-Picher Industries, Inc., an Ohio corporation, as survivor and successor by
merger with E-P Acquisition, Inc. (as further defined in the Credit Agreement
defined below, the "Borrower"); and
WHEREAS, E-P Acquisition, Inc. and ABN AMRO Bank N.V. ("ABN AMRO"),
individually and as agent (ABN AMRO acting as such agent and any successor or
successors to ABN AMRO in such capacity being hereinafter referred to as the
"Agent") have entered into a Credit Agreement dated as of February 19, 1998
(such Credit Agreement as the same may from time to time hereafter be modified,
amended or restated being hereinafter referred to as the "Credit Agreement")
pursuant to which ABN AMRO and such other banks, financial institutions and
letter of credit issuers from time to time parties thereto (ABN AMRO, in its
individual capacity, and such other banks and financial institutions being
hereinafter referred to collectively as the "Lenders" and individually as a
"Lender" and such letter of credit issuers being hereinafter referred to
collectively as the "Letter of Credit Issuers" and individually as a "Letter of
Credit Issuer") have extended various credit facilities to the Borrower; and
WHEREAS, the Borrower may from time to time enter into one or more
Interest Rate Protection Agreements with one or more of the Lenders party to the
Credit Agreement or affiliates thereof for the purpose of hedging or otherwise
protecting the Borrower against changes in interest rates (the liability of the
Borrower in respect of such agreements with such Lenders or affiliates being
hereinafter referred to as the "Hedging Liability") (the Agent, the Lenders, the
Letter of Credit Issuers and such affiliates party to Interest Rate Protection
Agreements being hereinafter referred to collectively as the "Guaranteed
Creditors" and individually as a "Guaranteed Creditor"); and
WHEREAS, the Borrower provides each of the Guarantors with substantial
financial, management, administrative, and technical support; and
WHEREAS, as a condition to extending the credit facilities to the
Borrower under the Credit Agreement, the Guaranteed Creditors have required,
among other things, that the Guarantors execute and deliver this Guaranty; and
WHEREAS, each Guarantor will directly and substantially benefit from
credit and other financial accommodations extended and to be extended by the
Guaranteed Creditors to the Borrower; and
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances
made or to be made, or credit accommodations given or to be given, to the
Borrower by the Guaranteed Creditors from time to time, each Guarantor hereby
makes the following representations and warranties to the Guaranteed Creditors
and hereby covenants and agrees with the Guaranteed Creditors as follows:
1. All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
2. Each Guarantor hereby jointly and severally guarantees to the
Guaranteed Creditors, the due and punctual payment when due of (i) any and all
indebtedness, obligations and liabilities of the Borrower and the Guarantors,
and of any of them individually, to the Guaranteed Creditors, and to any of them
individually, under or in connection with or evidenced by the Credit Agreement,
the Notes of the Borrower heretofore or hereafter issued under the Credit
Agreement and the obligations of the Borrower to reimburse the Guaranteed
Creditors, or any of them individually, for the amount of all drawings on all
Letters of Credit issued pursuant to the Credit Agreement, and all other
obligations of the Borrower under any and all applications for Letters of
Credit, and any and all liability of the Borrower and the Guarantors, and of any
of them individually, arising under or in connection or otherwise evidenced by
agreements with any one or more of the Guaranteed Creditors with respect to any
Hedging Liability, in each case whether now existing or hereafter arising (and
whether arising before or after the filing of a petition in bankruptcy and
including all interest accrued after the petition date), due or to become due,
direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired and (ii) any and all expenses and charges, legal or otherwise, suffered
or incurred by the Guaranteed Creditors, and any of them, in collecting or
enforcing any of such indebtedness, obligations and liabilities or in realizing
on or protecting or preserving any security therefor. The indebtedness,
obligations and liabilities described in the immediately preceding clauses (i)
and (ii) are hereinafter referred to as the "indebtedness hereby guaranteed". In
case of failure by the Borrower punctually to pay any indebtedness hereby
guaranteed, each Guarantor hereby jointly and severally agrees to make such
payment or to cause such payment to be made punctually as and when the same
shall become due and payable, whether at stated maturity, by acceleration or
otherwise, and as if such payment were made by the Borrower. All payments
hereunder by any Guarantor shall be made in immediately available funds in
Dollars without setoff, counterclaim or other defense or withholding or
deduction of any nature. Notwithstanding anything in this Guaranty to the
contrary, the right of recovery against a Guarantor under this Guaranty shall
not exceed $1 less than the amount which would render such Guarantor's
obligations under this Guaranty void or voidable under applicable law, including
fraudulent conveyance law.
3. Each Guarantor further jointly and severally agrees to pay on demand
all reasonable expenses, legal and/or otherwise (including court costs and
reasonable attorneys'
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fees), paid or incurred by any Guaranteed Creditor in endeavoring to collect
the indebtedness hereby guaranteed, or any part thereof, or in enforcing or
endeavoring to enforce any Guarantor's obligations hereunder, or any part
thereof, or in protecting, defending or enforcing this Guaranty in any
litigation, bankruptcy or insolvency proceedings or otherwise.
4. Each Guarantor agrees that, upon demand, such Guarantor will then
pay to the Agent for the benefit of the Guaranteed Creditors the full amount of
the indebtedness hereby guaranteed then due (subject to the right of recovery
from such Guarantor pursuant to the last sentence of Section 2 above) whether or
not any one or more of the other Guarantors shall then or thereafter pay any
amount whatsoever in respect to their obligations hereunder.
5. Each of the Guarantors agrees that such Guarantor will not exercise
or enforce any right of exoneration, contribution, reimbursement, recourse or
subrogation available to such Guarantor against any person liable for payment of
the indebtedness hereby guaranteed, or as to any security therefor, unless and
until the full amount owing to the Guaranteed Creditors of the indebtedness
hereby guaranteed has been fully paid and satisfied and each of the commitments
by the Guaranteed Creditors to extend any indebtedness hereby guaranteed shall
have expired or otherwise terminated. The payment by any Guarantor of any amount
or amounts to the Guaranteed Creditors pursuant hereto shall not in any way
entitle any such Guarantor, either at law, in equity or otherwise, to any right,
title or interest (whether by way of subrogation or otherwise) in and to the
indebtedness hereby guaranteed or any part thereof or any collateral security
therefor or any other rights or remedies in any way relating thereto or in and
to any amounts theretofor, then or thereafter paid or applicable to the payment
thereof howsoever such payment may be made and from whatsoever source such
payment may be derived unless and until all of the indebtedness hereby
guaranteed and all costs and expenses suffered or incurred by the Guaranteed
Creditors in enforcing this Guaranty have been paid and satisfied in full and
each of the commitments by the Guaranteed Creditors to extend any indebtedness
hereby guaranteed shall have expired or otherwise terminated and unless and
until such payment in full and termination, any payments made by any Guarantor
hereunder and any other payments from whatsoever source derived on account of or
applicable to the indebtedness hereby guaranteed or any part thereof shall be
held and taken to be merely payments in gross to the Guaranteed Creditors
reducing pro tanto the indebtedness hereby guaranteed.
6. To the extent permitted by the Credit Agreement, each Guaranteed
Creditor may, without any notice whatsoever to any of the Guarantors, sell,
assign, or transfer all of the indebtedness hereby guaranteed, or any part
thereof, and in that event each and every immediate and successive assignee or
transferee of all or any part of the indebtedness hereby guaranteed, shall have
the right through the Agent pursuant to Section 18 hereof to enforce this
Guaranty, by suit or otherwise, for the benefit of such assignee or transferee,
as fully as if such assignee or transferee were herein by name specifically
given such rights, powers and benefits; but each Guaranteed Creditor through the
Agent pursuant to Section 18 hereof shall have an unimpaired right to enforce
this Guaranty for its own benefit, as to so much of the indebtedness hereby
guaranteed that it has not sold, assigned or transferred.
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7. This Guaranty is a continuing, absolute and unconditional Guaranty,
and shall remain in full force and effect until written notice of its
discontinuance executed by the Borrower and all the Guarantors shall be actually
received by the Guaranteed Creditors, and also until any and all of the
indebtedness hereby guaranteed which was created or existing before receipt of
such notice shall be fully paid and satisfied and each of the commitments by the
Guaranteed Creditors to extend any indebtedness hereby guaranteed shall have
expired or otherwise terminated. The dissolution of any Guarantor shall not
terminate this Guaranty as to such Guarantor until notice of such dissolution
shall have been actually received by the Guaranteed Creditors, nor until all of
the indebtedness hereby guaranteed, created or existing or committed to be
extended in each case before receipt of such notice shall be fully paid and
satisfied. The Guaranteed Creditors may at any time or from time to time release
any Guarantor from its obligations hereunder or effect any compromise with any
Guarantor and no such release or compromise shall in any manner impair or
otherwise affect the obligations hereunder of the other Guarantors. No release,
compromise, or discharge of any one or more of the Guarantors shall release,
compromise or discharge the obligations of the other Guarantors hereunder.
8. In case of the dissolution, liquidation or insolvency (howsoever
evidenced) of, or the institution of bankruptcy or receivership proceedings
against Holdings, the Borrower or any Guarantor, all of the indebtedness hereby
guaranteed which is then existing shall immediately become due or accrued and
payable from the Guarantors. All payments received from the Borrower or on
account of the indebtedness hereby guaranteed from whatsoever source, shall be
taken and applied as payment in gross, and this Guaranty shall apply to and
secure any ultimate balance that shall remain owing to the Guaranteed Creditors.
9. The liability hereunder shall in no way be affected or impaired by
(and the Guaranteed Creditors are hereby expressly authorized to make from time
to time, without notice to any of the Guarantors), any sale, pledge, surrender,
compromise, settlement, release, renewal, extension, impairment, indulgence,
alteration, substitution, exchange, change in, modification or other disposition
of any of the indebtedness hereby guaranteed, either express or implied, or of
any Credit Document or any other contract or contracts evidencing any thereof,
or of any security or collateral therefor or any guaranty thereof. The liability
hereunder shall in no way be affected or impaired by any acceptance by the
Guaranteed Creditors of any security for or other guarantors upon any of the
indebtedness hereby guaranteed, or by any failure, neglect or omission on the
part of the Guaranteed Creditors to realize upon or protect any of the
indebtedness hereby guaranteed, or any collateral or security therefor
(including, without limitation, impairment of collateral and failure to perfect
security interest in any collateral), or to exercise any lien upon or right of
appropriation of any moneys, credits or property of Holdings, the Borrower or
any Guarantor, possessed by any of the Guaranteed Creditors, toward the
liquidation of the indebtedness hereby guaranteed, or by any application of
payments or credits thereon. The Guaranteed Creditors shall have the exclusive
right to determine how, when and what application of payments and credits, if
any, shall be made on said indebtedness hereby guaranteed, or any part of same.
In order to hold any Guarantor liable hereunder, there shall be no obligation on
the part of the Guaranteed Creditors, at any time, to resort for
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payment to the Borrower or to any other Guarantor, or to any other person, its
property or estate, or resort to any collateral, security, property, liens or
other rights or remedies whatsoever, and the Guaranteed Creditors shall have the
right to enforce this Guaranty against any Guarantor irrespective of whether or
not other proceedings or steps are pending seeking resort to or realization upon
or from any of the foregoing are pending.
10. In the event the Guaranteed Creditors shall at any time in their
discretion permit a substitution of Guarantors hereunder or a party shall wish
to become Guarantor hereunder, such substituted or additional Guarantor shall,
upon executing an agreement in the form attached hereto as Exhibit A, become a
party hereto and be bound by all the terms and conditions hereof to the same
extent as though such Guarantor had originally executed this Guaranty and in the
case of a substitution, in lieu of the Guarantor being replaced. No such
substitution shall be effective absent the written consent of the Guaranteed
Creditors delivered in accordance with the terms of the Credit Agreement, nor
shall it in any manner affect the obligations of the other Guarantors hereunder.
11. All diligence in collection or protection, and all presentment,
demand, protest and/or notice, as to any and everyone, whether or not the
Borrower or the Guarantors or others, of dishonor and of default and of
non-payment and of the creation and existence of any and all of said
indebtedness hereby guaranteed, and of any security and collateral therefor, and
of the acceptance of this Guaranty, and of any and all extensions of credit and
indulgence hereunder, are expressly waived.
12. No act of commission or omission of any kind, or at any time, upon
the part of the Guaranteed Creditors in respect to any matter whatsoever, shall
in any way affect or impair this Guaranty.
13. The Guarantors waive any and all defenses, claims and discharges of
the Borrower, or any other obligor or guarantor, pertaining to the indebtedness
hereby guaranteed, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the Guarantors will not assert, plead
or enforce against the Guaranteed Creditors any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata, statue of frauds,
anti-deficiency statute, fraud, incapacity, minority, usury, illegality or
unenforceability which may be available to the Borrower or any other person
liable in respect of any of the indebtedness hereby guaranteed, or any set-off
available against the Guaranteed Creditors to the Borrower or any such other
person, whether or not on account of a related transaction. The Guarantors agree
that the Guarantors shall be and remain jointly and severally liable for any
deficiency remaining after foreclosure or other realization on any lien or
security interest securing the indebtedness hereby guaranteed, whether or not
the liability of the Borrower or any other obligor for such deficiency is
discharged pursuant to statute or judicial decision.
14. If any payment applied by the Guaranteed Creditors to the
indebtedness hereby guaranteed is thereafter set aside, recovered, rescinded or
required to be returned for any reason (including, without limitation, the
bankruptcy, insolvency or reorganization of the Borrower or any other obligor),
the indebtedness hereby guaranteed to which such payment
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was applied shall for the purposes of this Guaranty be deemed to have continued
in existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such of the indebtedness hereby guaranteed as fully as if such
application had never been made.
15. The liability of the Guarantors under this Guaranty is in addition
to and shall be cumulative with all other liabilities of the Guarantors after
the date hereof to the Guaranteed Creditors as a Guarantor of the indebtedness
hereby guaranteed, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
16. Any invalidity or unenforceability of any provision or application
of this Guaranty shall not affect other lawful provisions and applications
hereof, and to this end the provisions of this Guaranty are declared to be
severable. Without limiting the generality of the foregoing, any invalidity or
unenforceability against any Guarantor of any provision or application of the
Guaranty shall not affect the validity or enforceability of the provisions or
application of this Guaranty as against the other Guarantors.
17. Any demand for payment on this Guaranty or any other notice required
or desired to be given hereunder to any Guarantor shall be in writing
(including, without limitation, notice by telecopy) and shall be given to the
relevant party in accordance with Section 12.03 of the Credit Agreement, or such
other address or telecopier number as such party may hereafter specify by notice
to the Agent given by United States certified or registered mail, by telecopy
or by other telecommunication device capable of creating a written record of
such notice and its receipt. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this Section and a confirmation of such
telecopy has been received by the sender, (ii) if given by mail, five (5) days
after such communication is deposited in the mail, certified or registered with
return receipt requested, addressed as aforesaid or (iii) if given by any other
means, when delivered at the addresses specified in this Section.
18. No Guaranteed Creditor (other than the Agent) shall have the right
to institute any suit, action or proceeding in equity or at law in connection
with this Guaranty for the enforcement of any remedy under or upon this
Guaranty; it being understood and intended that no one or more of the Guaranteed
Creditors (other than the Agent) shall have any right in any manner whatsoever
to enforce any right hereunder, and that all proceedings at law or in equity
shall be instituted, had and maintained by the Agent in the manner herein
provided and for the benefit of the Guaranteed Creditors.
19. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
LAW OF THE STATE OF NEW YORK (without regard to principles of conflicts of laws)
in which state it shall be performed by the Guarantors and may not be waived,
amended, released or otherwise changed except by a writing signed by the
Guaranteed Creditors. This Guaranty and every part thereof shall be effective
upon delivery to the Agent, without further act, condition or acceptance by the
Guaranteed Creditors, shall be binding upon the Guarantors and upon the legal
representatives, successors and assigns of the Guarantors, and
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shall inure to the benefit of the Guaranteed Creditors, their successors, legal
representatives and assigns. The Guarantors waive notice of the Guaranteed
Creditors' acceptance hereof. This Guaranty may be executed in counterparts and
by different parties hereto on separate counterparts each of which shall be an
original, but all together to be one and the same instrument.
20. The Guarantors' obligation hereunder to make payments in Dollars
(the "Obligation Currency") shall not be discharged or satisfied by any tender
or recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Guaranteed Creditors of the
full amount of the Obligation Currency expressed to be payable to the Guaranteed
Creditors under this Guaranty. If for the purpose of obtaining or enforcing
judgment against any Guarantor in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made at the rate of exchange (as quoted by the Agent or if the Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Agent) determined, in each case, as of the day immediately
preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date"). If there is
a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, the Guarantors
covenant and agree to pay, or cause to be paid, such additional amounts, if any
(but in any event not a lesser amount) as may be necessary to ensure that the
amount paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate or exchange prevailing
on the Judgment Currency Conversion Date. For purposes of determining any rate
of exchange for this Section 20, such amounts shall include any premium and
costs payable in connection with the purchase of the Obligation Currency.
21. Each Guarantor hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Guaranty or the transactions
contemplated hereby. Each Guarantor irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such court has been brought in an inconvenient
forum. EACH OF THE GUARANTORS, THE AGENT AND THE GUARANTEED CREDITORS HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
executed and delivered as of the date first above written.
"GUARANTORS"
DAISY PARTS, INC.
By /s/ XXXXXXX XXXXXXXXXXXX
--------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
---------------------------------------
Title Authorized Person
--------------------------------------
EAGLE-PICHER TECHNOLOGIES, LLC
By /s/ XXXXXXX XXXXXXXXXXXX
--------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
---------------------------------------
Title Director-Manager
--------------------------------------
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EAGLE-PICHER DEVELOPMENT COMPANY, INC.
By /s/ XXXXXXX XXXXXXXXXXXX
--------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
----------------------------------------
Title President
----------------------------------------
EAGLE-PICHER FAR EAST, INC.
By /s/ XXXXXXX XXXXXXXXXXXX
--------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
----------------------------------------
Title Authorized Person
---------------------------------------
EAGLE-PICHER FLUID SYSTEMS, INC.
By /s/ XXXXXXX XXXXXXXXXXXX
--------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
---------------------------------------
Title Authorized Person
--------------------------------------
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EAGLE-PICHER MINERALS, INC.
By /s/ XXXXXXX XXXXXXXXXXXX
-----------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------
Title Authorized Person
--------------------------------------------
HILLSDALE TOOL & MANUFACTURING CO.
By /s/ XXXXXXX XXXXXXXXXXXX
-----------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
-----------------------------------------
Title Authorized Person
-----------------------------------------
MICHIGAN AUTOMOTIVE RESEARCH CORPORATION
By /s/ XXXXXXX XXXXXXXXXXXX
-----------------------------------------------
Name Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------
Title Authorized Person
--------------------------------------------
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Accepted and agreed to in New York, New York as of the date first above
written.
ABN AMRO BANK N.V., as Agent as
aforesaid for the Guaranteed Creditors
By /s/ XXXXXXX X. XXXXXXX
-------------------------------------------
Its Group Vice President
---------------------------------------
By /s/ XXXX XXXXXX
-------------------------------------------
Its Group Vice President
---------------------------------------
Address:
1325 Avenue of the Americas
New York, New York
Attention: Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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EXHIBIT A
TO
SUBSIDIARY GUARANTY AGREEMENT
ASSUMPTION AND SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT
This Assumption and Supplement to Subsidiary Guaranty Agreement (the
"Agreement") is dated as of this _____ day of ____________, _____, made by [NEW
GUARANTOR], a ___________ corporation (the "New Guarantor");
WITNESSETH THAT:
WHEREAS, certain parties have executed and delivered to the Guaranteed
Creditors that certain Subsidiary Guaranty Agreement dated as of February 24,
1998 (such Subsidiary Guaranty Agreement, as the same may from time to time be
modified or amended, including supplements thereto which add or substitute
parties as Guarantors thereunder, being hereinafter referred to as the
"Guaranty") pursuant to which such parties (the "Existing Guarantors") have
guaranteed to the Guaranteed Creditors the full and prompt payment of, among
other things, any and all indebtedness, obligations and liabilities of the
Borrower (as defined in the Guaranty) arising under or relating to the Credit
Agreement and the Credit Documents as defined therein and certain Interest Rate
Protection Agreements; and
WHEREAS, the Borrower provides the New Guarantor with substantial
financial, managerial, administrative and technical support and the New
Guarantor will directly and substantially benefit from credit and other
financial accommodations extended and to be extended by the Guaranteed Creditors
to the Borrower;
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances
made or to be made, or credit accommodations given or to be given, to the
Borrower by the Guaranteed Creditors from time to time, the New Guarantor hereby
agrees as follows:
1. The New Guarantor acknowledges and agrees that it shall become a
"Guarantor" party to the Guaranty effective upon the date of the New Guarantor's
execution of this Agreement and the delivery of this Agreement to the Agent on
behalf of the Guaranteed Creditors, and that upon such execution and delivery,
all references in the Guaranty to the terms "Guarantor" or "Guarantors" shall be
deemed to include the New Guarantor.
2. The New Guarantor hereby assumes and becomes liable (jointly and
severally with all the other Guarantors) for the indebtedness hereby guaranteed
(as defined in the Guaranty) and agrees to pay and otherwise perform all of the
obligations of a Guarantor under the Guaranty according to, and otherwise on and
subject to, the terms and conditions of the Guaranty to the same extent and with
the same force and effect as if the New Guarantor had originally been one of the
Existing Guarantors under the Guaranty and had originally executed the same as
such an Existing Guarantor.
3. All capitalized terms used in this Agreement without definition
shall have the same meaning herein as such terms have in the Guaranty, except
that any reference to the term "Guarantor" or "Guarantors" and any provision of
the Guaranty providing meaning to such term shall be deemed a reference to the
Existing Guarantors and the New Guarantor. Except as specifically modified
hereby, all of the terms and conditions of the Guaranty shall stand and remain
unchanged and in full force and effect.
4. The New Guarantor agrees to execute and deliver such further
instruments and documents and do such further acts and things as the Agent or
the Guaranteed Creditors may deem necessary or proper to carry out more
effectively the purposes of this Agreement.
5. No reference to this Agreement need be made in the Guaranty or in
any other document or instrument making reference to the Guaranty, any reference
to the Guaranty in any of such to be deemed a reference to the Guaranty as
modified hereby.
6. This Agreement shall be governed by and construed in accordance with
the State of New York (without regard to principles of conflicts of law) in
which state it shall be performed by the New Guarantor.
[NEW GUARANTOR]
By
----------------------------------
Its
---------------------------------
Acknowledged and agreed to in New York, New York as of the date first
above written.
ABN AMRO BANK N.V., as Agent as
aforesaid for the Guaranteed Creditors
By
------------------------------------
Its
--------------------------------
By
------------------------------------
Its
--------------------------------
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