SUBSIDIARY GUARANTEE
EXHIBIT
4.04
SUBSIDIARY
GUARANTEE, dated as of June 27, 2007 (this “Guarantee”),
made
by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the “Guarantors”),
in
favor of the holders (the “Holders”)
of
those certain 12% Secured Promissory Notes (the “Notes”)
made
by Aduromed Industries, Inc. (the “Company”).
WITNESSETH:
WHEREAS,
each Guarantor will directly benefit from the extension of credit to the Company
represented by the issuance of the Notes; and
NOW,
THEREFORE, in consideration of the premises and to induce the Holders to enter
purchase the Notes, each Guarantor hereby agrees with the Holders as
follows:
1. Definitions.
The
words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import
when used in this Guarantee shall refer to this Guarantee as a whole and not
to
any particular provision of this Guarantee, and Section and Schedule references
are to this Guarantee unless otherwise specified. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural
forms
of such terms. The following terms shall have the following
meanings:
“Guarantee”
means
this Subsidiary Guarantee, as the same may be amended, supplemented or otherwise
modified from time to time.
“Obligations”
means
the collective reference to all obligations and undertakings of the Company
of
whatever nature, monetary or otherwise, under the Notes, that certain Loan
and
Security Agreement, dated the date hereof, by and among the Company, the Holders
and the Guarantors (the “Security
Agreement”)
or any
other future agreement or obligations undertaken by the Company to the Holders,
together with all reasonable attorneys’ fees, disbursements and all other costs
and expenses of collection incurred by Holders in enforcing any of such
Obligations and/or this Guarantee.
“Permitted
Indebtedness”
shall
mean
the
indebtedness of a Guarantor existing on the date of issuance of the
Note.
“Permitted
Lien”
shall
mean the individual and collective reference to the following: (a) liens for
taxes, assessments and other governmental charges or levies not yet due or
liens
for taxes, assessments and other governmental charges or levies being contested
in good faith and by appropriate proceedings for which adequate reserves (in
the
good faith judgment of the management of the Guarantors) have been established
in accordance with generally accepted accounting procedures and (b) liens
imposed by law which were incurred in the ordinary course of business, such
as
carriers’, warehousemen’s and mechanics’ liens, statutory landlords’ liens, and
other similar liens arising in the ordinary course of business, and (x) which
do
not individually or in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of
the
business of the Guarantors and its consolidated subsidiaries or (y) which are
being contested in good faith by appropriate proceedings, which proceedings
have
the effect of preventing the forfeiture or sale of the property or asset subject
to such lien.
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2. Guarantee.
(a) Guarantee.
(i) The
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantee to the Holders and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Company
when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(ii) The
maximum liability of each Guarantor hereunder shall in no event exceed the
amount which can be guaranteed by such Guarantor under applicable federal and
state laws, including laws relating to the insolvency of debtors, fraudulent
conveyance or transfer or laws affecting the rights of creditors generally
(after giving effect to the right of contribution established in Section
2(b)).
(iii) Each
Guarantor agrees that the Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing
the guarantee contained in this Section 2 or affecting the rights and remedies
of the Holders hereunder.
(iv) The
guarantee contained in this Section 2 shall remain in full force and effect
until all the Obligations and the obligations of each Guarantor under the
guarantee contained in this Section 2 shall have been satisfied by payment
in
full.
(v) No
payment made by the Company, any of the Guarantors, any other guarantor or
any
other Person or received or collected by the Holders from the Company, any
of
the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or
from
time to time in reduction of or in payment of the Obligations shall be deemed
to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Obligations or any payment received
or
collected from such Guarantor in respect of the Obligations), remain liable
for
the Obligations up to the maximum liability of such Guarantor hereunder until
the Obligations are paid in full.
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(vi) Notwithstanding
anything to the contrary in this Agreement, with respect to any defaulted
non-monetary Obligations the specific performance of which by the Guarantors
is
not reasonably possible, the Guarantors shall only be liable for making the
Holders whole on a monetary basis for the Company's failure to perform such
Obligations.
(b) Right
of Contribution.
Each
Guarantor hereby agrees that to the extent that a Guarantor shall have paid
more
than its proportionate share of any payment made hereunder, such Guarantor
shall
be entitled to seek and receive contribution from and against any other
Guarantor hereunder which has not paid its proportionate share of such payment.
Each Guarantor's right of contribution shall be subject to the terms and
conditions of Section 2(c). The provisions of this Section 2(b) shall in no
respect limit the obligations and liabilities of any Guarantor to the Holders,
and each Guarantor shall remain liable to the Holders for the full amount
guaranteed by such Guarantor hereunder.
(c) No
Subrogation.
Notwithstanding any payment made by any Guarantor hereunder or any set-off
or
application of funds of any Guarantor by the Holders, no Guarantor shall be
entitled to be subrogated to any of the rights of the Holders against the
Company or any other Guarantor or any collateral security or guarantee or right
of offset held by the Holders for the payment of the Obligations, nor shall
any
Guarantor seek or be entitled to seek any contribution or reimbursement from
the
Company or any other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Holders by the Company on account
of
the Obligations are paid in full. If any amount shall be paid to any Guarantor
on account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by such Guarantor
in
trust for the Holders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Holders in
the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Holders, if required), to be applied against the Obligations, whether matured
or
unmatured, in such order as the Holders may determine.
(d) Amendments,
Etc. With Respect to the Obligations.
Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Holders may be rescinded by the Holders and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or
for
any part thereof, or any collateral security or guarantee therefor or right
of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Holders, and any collateral security, guarantee
or right of offset at any time held by the Holders for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. The Holders
shall have no obligation to protect, secure, perfect or insure any lien at
any
time held by them as security for the Obligations or for the guarantee contained
in this Section 2 or any property subject thereto.
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(e) Guarantee
Absolute and Unconditional.
Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Holders upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 2; and all dealings between the Company and any of the Guarantors,
on
the one hand, and the Holders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Section 2. Each Guarantor waives to the extent permitted
by
law diligence,
presentment,
protest, demand for payment and notice of default or nonpayment to or upon
the
Company or any of the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall
be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of any of the Obligations
or any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the Holders, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Holders) which may at any time be available to or
be
asserted by the Company or any other Person against the Holders, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor,
the
Holders may, but shall be under no obligation to, make a similar demand on
or
otherwise pursue such rights and remedies as they may have against the Company,
any other Guarantor or any other Person or against any collateral security
or
guarantee for the Obligations or any right of offset with respect thereto,
and
any failure by the Holders to make any such demand, to pursue such other rights
or remedies or to collect any payments from the Company, any other Guarantor
or
any other Person or to realize upon any such collateral security or guarantee
or
to exercise any such right of offset, or any release of the Company, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Holders against any
Guarantor. For the purposes hereof, "demand" shall include the commencement
and
continuance of any legal proceedings.
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(f) Reinstatement.
The
guarantee contained in this Section 2 shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof,
of
any of the Obligations is rescinded or must otherwise be restored or returned
by
the Holders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Company or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been
made.
(g) Payments.
Each
Guarantor hereby guarantees that payments hereunder will be paid to the Holders
without set-off or counterclaim in U.S. dollars at the address set forth or
referred to in the Security Agreement.
3. Representations
and Warranties.
Each
Guarantor hereby makes the following representations and warranties to Holders
as of the date hereof:
(a) Organization
and Qualification.
The
Guarantor is a corporation, duly incorporated, validly existing and in good
standing under the laws of the applicable jurisdiction set forth on Schedule
1,
with the requisite corporate power and authority to own and use its properties
and assets and to carry on its business as currently conducted. The Guarantor
has no subsidiaries other than those identified as such on the Disclosure
Schedules to the Security Agreement. The Guarantor is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted or property owned by it makes
such
qualification necessary, except where the failure to be so qualified or in
good
standing, as the case may be, could not, individually or in the aggregate,
(x)
adversely affect the legality, validity or enforceability of any of this
Guaranty in any material respect, (y) have a material adverse effect on the
results of operations, assets, prospects, or financial condition of the
Guarantor or (z) adversely impair in any material respect the Guarantor's
ability to perform fully on a timely basis its obligations under this Guaranty
(a "Material
Adverse Effect").
(b) Authorization;
Enforcement.
The
Guarantor has the requisite corporate power and authority to enter into and
to
consummate the transactions contemplated by this Guaranty, and otherwise to
carry out its obligations hereunder. The execution and delivery of this Guaranty
by the Guarantor and the consummation by it of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part
of the Guarantor. This Guaranty has been duly executed and delivered by the
Guarantor and constitutes the valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
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(c) No
Conflicts.
The
execution, delivery and performance of this Guaranty by the Guarantor and the
consummation by the Guarantor of the transactions contemplated thereby do not
and will not (i) conflict with or violate any provision of its Certificate
of
Incorporation or By-laws or (ii) conflict with, constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Guarantor
is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Guarantor is subject (including Federal and state
securities laws and regulations), or by which any material property or asset
of
the Guarantor is bound or affected, except in the case of each of clauses (ii)
and (iii), such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as could not, individually or in the aggregate,
have or result in a Material Adverse Effect. The business of the Guarantor
is
not being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in the
aggregate, do not have a Material Adverse Effect.
(d) Consents
and Approvals.
The
Guarantor is not required to obtain any consent, waiver, authorization or order
of, or make any filing or registration with, any court or other federal, state,
local, foreign or other governmental authority or other person in connection
with the execution, delivery and performance by the Guarantor of this
Guaranty.
(e) Foreign
Law.
Each
Guarantor has consulted with appropriate foreign legal counsel with respect
to
any of the above representations for which non-U.S. law is applicable. Such
foreign counsel have advised each applicable Guarantor that such counsel knows
of no reason why any of the above representations would not be true and
accurate. Such foreign counsel were provided with copies of this Subsidiary
Guarantee prior to rendering their advice.
4. Covenants.
(a) Each
Guarantor covenants and agrees with the Holders that, from and after the date
of
this Guarantee until the Obligations shall have been paid in full, such
Guarantor shall take, and/or shall refrain from taking, as the case may be,
each
commercially reasonable action that is necessary to be taken or not taken,
as
the case may be, so that no Event of Default is caused by the failure to take
such action or to refrain from taking such action by such Guarantor.
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(b) So
long
as any of the Obligations are outstanding, each Guarantor will not directly
or
indirectly on or after the date of this Guarantee:
i. except
for Permitted Indebtedness, enter into, create, incur, assume or suffer to
exist
any indebtedness for borrowed money of any kind, including but not limited
to, a
guarantee, on or with respect to any of its property or assets now owned or
hereafter acquired or any interest therein or any income or profits therefrom
that is
senior
to, or pari passu with, in any respect, such Guarantor’s obligations
hereunder;
ii. except
for Permitted Liens, enter into, create, incur, assume or suffer to exist any
liens of any kind, on or with respect to any of its property or assets now
owned
or hereafter acquired or any interest therein or any income or profits therefrom
that is senior to, in any respect, such Guarantor’s obligations
hereunder;
iii. amend
its
certificate of incorporation, bylaws or other charter documents so as to
adversely affect any rights of the Holder hereunder;
iv. repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a de
minimis number of shares of its Common Stock or Common Stock Equivalents;
v. enter
into any agreement with respect to any of the foregoing;
or
vi. pay
cash
dividends on any equity securities of the Company.
5. Miscellaneous.
(a) Amendments
in Writing.
None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except in writing by the Holders.
(b) Notices.
All
notices, requests and demands to or upon the Holders or any Guarantor hereunder
shall be effected in the manner provided for in the Notes, provided that any
such notice, request or demand to or upon any Guarantor shall be addressed
to
such Guarantor at its notice address set forth on Schedule
5(b).
(c) No
Waiver By Course Of Conduct; Cumulative Remedies.
The
Holders shall not by any act (except by a written instrument pursuant to Section
5(a)), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any default under the Notes
or Event of Default. No failure to exercise, nor any delay in exercising, on
the
part of the Holders, any right, power or privilege hereunder shall operate
as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Holders of any right
or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Holders would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
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(d) Enforcement
Expenses;
Indemnification.
(i) Each
Guarantor agrees to pay, or reimburse the Holders for, all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Guarantee and the Security Agreement to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
to the Holders.
(ii) Each
Guarantor agrees to pay, and to save the Holders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and
all
stamp, excise, sales or other taxes which may be payable or determined to be
payable in connection with any of the transactions contemplated by this
Guarantee.
(iii) Each
Guarantor agrees to pay, and to save the Holders harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of
this
Guarantee.
(iv) The
agreements in this Section shall survive repayment of the Obligations.
(e) Successor
and Assigns.
This
Guarantee shall be binding upon the successors and assigns of each Guarantor
and
shall inure to the benefit of the Holders and their respective successors and
assigns, provided that no Guarantor may assign, transfer or delegate any of
its
rights or obligations under this Guarantee without the prior written consent
of
the Holders.
(f) Set-Off.
Each
Guarantor hereby irrevocably authorizes the Holders at any time and from time
to
time while an Event of Default under any of the Notes or Security Agreement
shall have occurred and be continuing, without notice to such Guarantor or
any
other Guarantor, any such notice being expressly waived by each Guarantor,
to
set-off and appropriate and apply any and all deposits, credits, indebtedness
or
claims, in any currency, in each case whether direct or indirect, absolute
or
contingent, matured or unmatured, at any time held or owing by the Holders
to or
for the credit or the account of such Guarantor, or any part thereof in such
amounts as the Holders may elect, against and on account of the obligations
and
liabilities of such Guarantor to the Holders hereunder and claims of every
nature and description of the Holders against such Guarantor, in any currency,
whether arising hereunderor otherwise, as the Holders may elect, whether or
not
the Holders have made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Holders shall notify
such Guarantor promptly of any such set-off and the application made by the
Holders of the proceeds thereof, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
the
Holders under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Holders
may
have.
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(g) Counterparts.
This
Guarantee may be executed by one or more of the parties to this Guarantee on
any
number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(h) Severability.
Any
provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
(i) Section
Headings.
The
Section headings used in this Guarantee are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
(j) Integration.
This
Guarantee, the Notes and the Loan and Security Agreement represent the agreement
of the Guarantors and the Holders with respect to the subject matter hereof
and
thereof, and there are no promises, undertakings, representations or warranties
by the Holders relative to subject matter hereof and thereof not expressly
set
forth or referred to herein or in the Notes and Security Agreement.
(k) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Guarantee shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Guarantee and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or is an inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Guarantee and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other
manner permitted by law. If either party shall commence an action or proceeding
to enforce any provisions of the Transaction Documents, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
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(l) Acknowledgements.
Each
Guarantor hereby acknowledges that:
(i) it
has
been advised by counsel in the negotiation, execution and delivery of this
Guarantee and the Security Agreement to which it is a party;
(ii) the
Holders have no fiduciary relationship with or duty to any Guarantor arising
out
of or in connection with this Guarantee or the Security Agreement, and the
relationship between the Guarantors, on the one hand, and the Holders, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(iii) no
joint
venture is created hereby or by the Security Agreement or otherwise exists
by
virtue of the transactions contemplated hereby among the Guarantors and the
Holders.
(m) Additional
Guarantors.
The
Company shall cause each of its subsidiaries formed or acquired on or subsequent
to the date hereof to become a Guarantor for all purposes of this Guarantee
by
executing and delivering an
Assumption
Agreement in the form of Annex
1
hereto.
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(n) Release
of Guarantors.
Subject
to Section 2.6, each Guarantor will be released from all liability hereunder
concurrently with the repayment in full of all amounts owed under the Notes
and
the Loan and Security Agreement.
(o) Waiver
of Jury Trial.
EACH
GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE HOLDERS, HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM
THEREIN.
*******************
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IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be
duly executed and delivered as of the date first above written.
|
ADUROMED
CORPORATION, a
Delaware corporation
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| |
|
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| By: | Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx |
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|
Title:
Treasurer and Chief Financial Officer
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SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization
of
each Guarantor.
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JURISDICTION
OF INCORPORATION
|
COMPANY OWNED
BY PERCENTAGE
|
|||
| Aduromed Corporation | Delaware | 100% |
13
Annex
1
to
ASSUMPTION
AGREEMENT, dated as of ___, is made by ______, a _______corporation (the
"Additional
Guarantor"),
in
favor of the Holders pursuant to the Security Agreement referred to below.
All
capitalized terms not defined herein shall have the meaning ascribed to them
in
such Security Agreement.
W
I T N E S S E T H :
WHEREAS,
Aduromed Industries, Inc., a Delaware corporation (the "Company"),
all
of the subsidiaries of the Company and the Holders have entered into a Loan
and
Security Agreement, dated as of June 21, 2007 (as amended, supplemented or
otherwise modified from time to time, the "Security
Agreement");
WHEREAS,
in connection with the Security Agreement, the Company and its Subsidiaries
(other than the Additional Guarantor) have entered into the Subsidiary
Guarantee, dated as of June 21, 2007 (as amended, supplemented or otherwise
modified from time to time, the "Guarantee")
in
favor of the Holders;
WHEREAS,
the Security Agreement requires the Additional Guarantor to become a party
to
the Guarantee; and
WHEREAS,
the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the
Guarantee;
NOW,
THEREFORE, IT IS AGREED:
1. Guarantee.
By
executing and delivering this Assumption Agreement, the Additional Guarantor,
as
provided in Section 5(n) of the Guarantee, hereby becomes a party to the
Guarantee as a Guarantor thereunder with the same force and effect as if
originally named therein as a Guarantor and, without limiting the generality
of
the foregoing, hereby expressly assumes all obligations and liabilities of
a
Guarantor thereunder. The information set forth in Annex 1-A hereto is hereby
added to the information set forth in Schedule 1 to the Guarantee. The
Additional Guarantor hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the Guarantee is true
and correct on and as the date hereof as to such Additional Guarantor (after
giving effect to this Assumption Agreement) as if made on and as of such
date.
2. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of New York, without regard
to
the principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Assumption Agreement and any other Transaction
Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the
state
and federal courts sitting in the City of New York, borough of Manhattan for
the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or is an inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Assumption Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If either party shall commence an action
or proceeding to enforce any provisions of the Transaction Documents, then
the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorneys’ fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding.
14
IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above
written.
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[ADDITIONALGUARANTOR]
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Name:
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Title:
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