SENIOR SUBORDINATED SUBSIDIARY GUARANTY
This SENIOR SUBORDINATED SUBSIDIARY GUARANTY is entered into as of April 1,
1999 by THE UNDERSIGNED (each a "Guarantor" and collectively, "Guarantors") in
favor of and for the benefit of Credit Suisse First Boston as Administrative
Agent for and representative of (in such capacity herein called "Guaranteed
Party") the Agent (as hereinafter defined) and the financial institutions party
to the Credit Agreement ("Lenders") referred to below, and, subject to
subsection 4.12 hereof, for the benefit of the other Beneficiaries (as
hereinafter defined).
RECITALS
A. Express Scripts, Inc., a Delaware corporation ("Company"), has entered
into that certain Senior Subordinated Credit Agreement dated as of April 1, 1999
with Guaranteed Party, Credit Suisse First Boston, as Lead Arranger and
Administrative Agent (the "Agent") and the financial institutions listed as
Lenders therein (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined).
B. A portion of the proceeds of the Loans may be advanced to Guarantors and
thus the Guaranteed Obligations (as hereinafter defined) are being incurred for
and will inure to the benefit of Guarantors (which benefits are hereby
acknowledged).
C. It is a condition precedent to the making of the Bridge Loans under the
Credit Agreement that Company's obligations thereunder be guarantied by
Guarantors.
D. Guarantors are willing irrevocably and unconditionally to guaranty such
obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Lenders and Guaranteed Party to enter into the Credit
Agreement and to make Loans and other extensions of credit thereunder,
Guarantors hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Certain Defined Terms. As used in this Guaranty, the following terms
shall have the following meanings unless the context otherwise requires:
"Additional Guarantor" shall have the meaning assigned to such term in
subsection 4.12.
"Adjusted Maximum Amount" has the meaning assigned to such term in
subsection 2.2(b).
"Beneficiaries" means Guaranteed Party, Agent and Lenders.
"Designated Guarantor Senior Debt" means, with respect to any Guarantor,
(i) Indebtedness of such Guarantor under or in respect of the Senior Secured
Credit Agreement and (ii) any other Indebtedness constituting Guarantor Senior
Debt of such Guarantor which, at the time of determination, has an aggregate
principal amount of at least $25.0 million and is specifically designated in the
instrument evidencing such Guarantor Senior Debt as "Designated Guarantor Senior
Debt" by such Guarantor.
"Fair Share" has the meaning assigned to that term in subsection 2.2(b).
"Fair Share Shortfall" has the meaning assigned to such term in subsection
2.2(b).
"Fraudulent Transfer Laws" has the meaning assigned to such term in
subsection 2.2(a).
"Guaranteed Obligations" has the meaning assigned to such term in
subsection 2.1.
"Guarantor Payment Blockage Period" has the meaning assigned to such term
in subsection 3.2(b).
"Guarantor Senior Debt" means, with respect to any Guarantor, (i) the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law), fees and expenses on any Indebtedness of
such Guarantor, whether outstanding on the Closing Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the guaranty of such Guarantor hereunder. Without limiting
the generality of the foregoing, "Guarantor Senior Debt" shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, (x) all obligations of every nature of such Guarantor under the Senior
Secured Credit Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, (y) all Interest Swap Obligations of such Guarantor
and (z) all obligations under Currency Agreements of such Guarantor, in each
case whether outstanding on the Closing Date or thereafter incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not include (i) any
Indebtedness of such Guarantor to a Subsidiary of such Guarantor, (ii)
Indebtedness to, or guaranteed on behalf of, any director, officer or employee
of either of such Guarantor or any Subsidiary of such Guarantor (including,
without limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes owed or owing
by such Guarantor, (vi) Indebtedness to the extent incurred in violation of
subsection 6.1 of the Credit Agreement, (vii) Indebtedness which, when incurred
and without respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx
Xxxxxx Code, is without recourse to such Guarantor, and (viii) any Indebtedness
which is, by its express terms, subordinated in right of payment to any other
Indebtedness of such Guarantor.
"Guaranty" means this Senior Subordinated Subsidiary Guaranty, as it may be
amended, supplemented or otherwise modified from time to time.
"Obligee Guarantor" has the meaning assigned to that term in subsection
2.8.
"payment in full", "paid in full" or any similar term means payment in full
of the Guaranteed Obligations, including all principal, interest, costs, fees
and expenses (including reasonable legal fees and expenses) of Beneficiaries as
required under the Loan Documents.
1.2 Interpretation.
(a) References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Guaranty unless otherwise specifically
provided.
(b) In the event of any conflict or inconsistency between the terms,
conditions and provisions of this Guaranty and the terms, conditions and
provisions of the Credit Agreement, the terms, conditions and provisions of this
Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 Guaranty of the Guaranteed Obligations. Subject to the provisions of
subsections 2.2(a), Guarantors jointly and severally hereby irrevocably and
unconditionally guarantee the due and punctual payment in full of all Guaranteed
Obligations when the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)). The term
"Guaranteed Obligations" is used herein in its most comprehensive sense and
includes:
(a) any and all Obligations of Company, in each case now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or unliquidated,
whether due or not due, and however arising under or in connection with the
Credit Agreement and the other Loan Documents, including those arising under
successive borrowing transactions under the Credit Agreement which shall either
continue the Obligations of Company or from time to time renew them after they
have been satisfied and including interest which, but for the filing of a
petition in bankruptcy with respect to Company, would have accrued on any
Guaranteed Obligations, whether or not a claim is allowed against Company for
such interest in the related bankruptcy proceeding; and
(b) those expenses set forth in subsection 2.9 hereof.
2.2 Limitation on Amount Guaranteed; Contribution by Guarantors. (a)
Anything contained in this Guaranty to the contrary notwithstanding, if any
Fraudulent Transfer Law (as hereinafter defined) is determined by a court of
competent jurisdiction to be applicable to the obligations of any Guarantor
under this Guaranty, such obligations of such Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Company or other
affiliates of Company to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of Subordinated Indebtedness which guaranty contains a limitation
as to maximum amount similar to that set forth in this subsection 2.2(a),
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement (including any such
right of contribution under subsection 2.2(b)).
(b) Guarantors under this Guaranty together desire to allocate among
themselves in a fair and equitable manner their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any
date by any Guarantor under this Guaranty (a "Funding Guarantor") that exceeds
its Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Guarantors in the amount of
such other Guarantor's Fair Share Shortfall (as defined below) as of such date,
with the result that all such contributions will cause each Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"Fair Share" means, with respect to a Guarantor as of any date of determination,
an amount equal to (i) the ratio of (x) the Adjusted Maximum Amount (as defined
below) with respect to such Guarantor to (y) the aggregate of the Adjusted
Maximum Amounts with respect to all Guarantors multiplied by (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations guarantied. "Fair Share
Shortfall" means, with respect to a Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Guarantor over the Aggregate
Payments of such Guarantor. "Adjusted Maximum Amount" means, with respect to a
Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Guarantor under this Guaranty determined as of such date, in
the case of any Guarantor, in accordance with subsection 2.2(a); provided that,
solely for purposes of calculating the "Adjusted Maximum Amount" with respect to
any Guarantor for purposes of this subsection 2.2(b), any assets or liabilities
of such Guarantor arising by virtue of any rights to subrogation, reimbursement
or indemnification or any rights to or obligations of contribution hereunder
shall not be considered as assets or liabilities of such Guarantor. "Aggregate
Payments" means, with respect to a Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and distributions made
on or before such date by such Guarantor in respect of this Guaranty (including
in respect of this subsection 2.2(b)) minus (ii) the aggregate amount of all
payments received on or before such date by such Guarantor from the other
Guarantors as contributions under this subsection 2.2(b). The amounts payable as
contributions hereunder shall be determined as of the date on which the related
payment or distribution is made by the applicable Funding Guarantor. The
allocation among Guarantors of their obligations as set forth in this subsection
2.2(b) shall not be construed in any way to limit the liability of any Guarantor
hereunder.
2.3 Subordination of Guaranty. The obligations of each Guarantor to the
Beneficiaries pursuant to the guaranty of such Guarantor hereunder are expressly
subordinate and subject in right of payment to the prior payment in full all
Guarantor Senior Debt of such Guarantor to the extent and in the manner provided
in Section 3.
2.4 Payment by Guarantors; Application of Payments. Subject to the
provisions of subsection 2.2(a), Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
any Beneficiary may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Company to pay any of the Guaranteed
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)),
Guarantors will upon demand pay, or cause to be paid, in cash, to Guaranteed
Party for the ratable benefit of Beneficiaries, an amount equal to the sum of
the unpaid principal amount of all Guaranteed Obligations then due as aforesaid,
accrued and unpaid interest on such Guaranteed Obligations (including interest
which, but for the filing of a petition in bankruptcy with respect to Company,
would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against Company for such interest in the related bankruptcy proceeding)
and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.
All such payments shall be applied promptly from time to time by Guaranteed
Party as provided in subsection 2.5E of the Credit Agreement.
2.5 Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) Guaranteed Party may enforce this Guaranty upon the occurrence of an
Event of Default under the Credit Agreement notwithstanding the existence of any
dispute between Company and any Beneficiary with respect to the existence of
such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the
obligations of Company under the Loan Documents and the obligations of any other
guarantor (including any other Guarantor) of the obligations of Company under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against
Company or any of such other guarantors and whether or not Company is joined in
any such action or actions.
(d) Payment by any Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Guaranteed Obligations which has not been paid.
Without limiting the generality of the foregoing, if Guaranteed Party is awarded
a judgment in any suit brought to enforce any Guarantor's covenant to pay a
portion of the Guaranteed Obligations, such judgment shall not be deemed to
release such Guarantor from its covenant to pay the portion of the Guaranteed
Obligations that is not the subject of such suit, and such judgment shall not,
except to the extent satisfied by such Guarantor, limit, affect, modify or
abridge any other Guarantor's liability hereunder in respect of the Guaranteed
Obligations.
(e) Any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability of this
Guaranty or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations, (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guaranteed Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment of this
Guaranty or the Guaranteed Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guaranteed
Obligations, any other guaranties of the Guaranteed Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to the
Guaranteed Obligations; (v) enforce and apply any security now or hereafter held
by or for the benefit of such Beneficiary in respect of this Guaranty or the
Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may determine
consistent with the Credit Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, and even though such action operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Guarantor
against Company or any security for the Guaranteed Obligations; and (vi)
exercise any other rights available to it under the Loan Documents.
(f) This Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Guaranteed Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Loan
Documents, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Guaranteed Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to departure
from, any of the terms or provisions (including provisions relating to events of
default) of the Credit Agreement, any of the other Loan Documents or any
agreement or instrument executed pursuant thereto, or of any other guaranty or
security for the Guaranteed Obligations, in each case whether or not in
accordance with the terms of the Credit Agreement or such Loan Document or any
agreement relating to such other guaranty or security; (iii) the Guaranteed
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the
other Loan Documents or from the proceeds of any security for the Guaranteed
Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary's
consent to the change, reorganization or termination of the corporate structure
or existence of Company or any of its Subsidiaries and to any corresponding
restructuring of the Guaranteed Obligations; (vi) any failure to perfect or
continue perfection of a security interest in any collateral which secures any
of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims
which Company may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury; and (viii) any other act or thing or omission, or delay to do any other
act or thing, which may or might in any manner or to any extent vary the risk of
any Guarantor as an obligor in respect of the Guaranteed Obligations.
2.6 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of
Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or
performance by such Guarantor, to (i) proceed against Company, any other
guarantor (including any other Guarantor) of the Guaranteed Obligations or any
other Person, (ii) proceed against or exhaust any security held from Company,
any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any deposit account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue any other
remedy in the power of any Beneficiary whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or
any disability or other defense of Company including any defense based on or
arising out of the lack of validity or the unenforceability of the Guaranteed
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of Company from any cause other than payment in full
of the Guaranteed Obligations;
(c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) any defense based upon any Beneficiary's errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to
bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and any legal or
equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting such Guarantor's liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices
of dishonor and notices of any action or inaction, including acceptance of this
Guaranty, notices of default under the Credit Agreement or any agreement or
instrument related thereto, notices of any renewal, extension or modification of
the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
subsection 2.5 and any right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of this Guaranty.
2.7 Guarantors' Rights of Subrogation, Contribution, Etc. Each Guarantor
hereby waives, until the Guaranteed Obligations shall have been indefeasibly
paid in full and the Commitments shall have terminated, any claim, right or
remedy, direct or indirect, that such Guarantor now has or may hereafter have
against Company or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute under
common law or otherwise and including (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or may hereafter
have against Company, (b) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against
Company, and (c) any benefit of, and any right to participate in, any collateral
or security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations shall have been indefeasibly paid in full and the
Commitments shall have terminated, each Guarantor shall withhold exercise of any
right of contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the Guaranteed Obligations (including any
such right of contribution under subsection 2.2(b)). Each Guarantor further
agrees that, to the extent the waiver or agreement to withhold the exercise of
its rights of subrogation, reimbursement, indemnification and contribution as
set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid
to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guaranteed
Obligations shall not have been paid in full, such amount shall be held in trust
for Guaranteed Party on behalf of Beneficiaries and shall forthwith be paid over
to Guaranteed Party for the benefit of Beneficiaries to be credited and applied
against the Guaranteed Obligations, whether matured or unmatured, in accordance
with the terms hereof.
2.8 Subordination of Other Obligations. Any indebtedness of Company or any
Guarantor now or hereafter held by any Guarantor (the "Obligee Guarantor") is
hereby subordinated in right of payment to the Guaranteed Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for Guaranteed
Party on behalf of Beneficiaries and shall forthwith be paid over to Guaranteed
Party for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any
manner the liability of the Obligee Guarantor under any other provision of this
Guaranty.
2.9 Expenses. Guarantors jointly and severally agree to pay, or cause to be
paid, on demand, and to save Beneficiaries harmless against liability for, any
and all costs and expenses (including reasonable fees and disbursements of
counsel and allocated reasonable costs of internal counsel) incurred or expended
by any Beneficiary in connection with the enforcement of or preservation of any
rights under this Guaranty.
2.10. Continuing Guaranty. This Guaranty is a continuing guaranty and shall
remain in effect until all of the Guaranteed Obligations shall have been paid in
full and the Commitments shall have terminated. Each Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.
2.11 Rights Cumulative. The rights, powers and remedies given to
Beneficiaries by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Beneficiaries by virtue
of any statute or rule of law or in any of the other Loan Documents or any
agreement between any Guarantor and any Beneficiary or Beneficiaries or between
Company and any Beneficiary or Beneficiaries. Any forbearance or failure to
exercise, and any delay by any Beneficiary in exercising, any right, power or
remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of
any such right, power or remedy.
2.12 Bankruptcy; Post-Petition Interest; Reinstatement of Guaranty. (a) So
long as any Guaranteed Obligations remain outstanding, no Guarantor shall,
without the prior written consent of Guaranteed Party acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceedings of or
against Company. The obligations of Guarantors under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or by any
defense which Company may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion
of the Guaranteed Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Guaranteed Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guaranteed Obligations if said proceedings had not been
commenced) shall be included in the Guaranteed Obligations because it is the
intention of Guarantors and Beneficiaries that the Guaranteed Obligations which
are guarantied by Guarantors pursuant to this Guaranty should be determined
without regard to any rule of law or order which may relieve Company of any
portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar person to pay Guaranteed Party, or allow the claim of
Guaranteed Party in respect of, any such interest accruing after the date on
which such proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are
paid by Company, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes under this Guaranty.
2.13 Notice of Events. As soon as Guarantor obtains knowledge thereof,
Guarantor shall give Guaranteed Party written notice of any condition or event
which has resulted in (a) a material adverse change in the financial condition
of Guarantor or Company or (b) any Default or Event of Default.
2.14 Set Off. In addition to any other rights any Beneficiary may have
under law or under this Guaranty, such Beneficiary is authorized at any time or
from time to time while an Event of Default has occurred and is continuing,
without notice (any such notice being hereby expressly waived), to set off and
to appropriate and to apply any and all deposits (general or special, including
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness of such Beneficiary owing to Guarantor and any other
property of Guarantor held by any Beneficiary to or for the credit or the
account of Guarantor against and on account of the Guaranteed Obligations and
liabilities of Guarantor to any Beneficiary under this Guaranty.
2.15 Evidence of Guaranty. To evidence their guaranties to the
Beneficiaries set forth in this Guaranty, each of the Guarantors hereby agrees
to execute the notation of guaranty in substantially the form included in the
form of each of the Bridge Note and Term Note. Each such notation of guaranty
shall be signed on behalf of each Guarantor by two officers (each of whom shall,
in each case, have been duly authorized by all requisite corporate actions).
Failure to execute the notation of guaranty shall not in any way limit the
guaranty of each Guarantor hereunder.
SECTION 3. SUBORDINATION OF GUARANTEED OBLIGATIONS
3.1 Guaranteed Obligations Subordinated to Guarantor Senior Debt. The
Lenders covenant and agree that payments of the Guaranteed Obligations by a
Guarantor hereunder shall be subordinated in accordance with the provisions of
this Section 3 to the prior payment in full, in cash or Cash Equivalents, of all
amounts payable in respect of Guarantor Senior Debt of such Guarantor whether
now outstanding or hereafter created (including any interest accruing subsequent
to an event specified in subsection 7.6 or 7.7 of the Credit Agreement whether
or not such interest is an allowed claim against such Guarantor), that the
subordination is for the benefit of the holders of Guarantor Senior Debt, and
that each holder of Guarantor Senior Debt whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have acquired
Guarantor Senior Debt in reliance upon the covenants and provisions contained in
this Guaranty.
3.2 Priority and Payment Over of Proceeds in Certain Events.
(a) Subordination of Guaranteed Obligations on Dissolution, Liquidation or
Reorganization of Such Guarantor. Upon any payment or distribution of assets or
securities of any Guarantor of any kind or character, whether in cash, property
or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of such Guarantor, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings
(other than a liquidation or dissolution of such Guarantor into the Company or
another Guarantor), all Guarantor Senior Debt of such Guarantor (including any
interest accruing subsequent to an event specified in subsection 7.6 or 7.7 of
the Credit Agreement whether or not such interest is an allowed claim
enforceable against such Guarantor) shall first be paid in full in cash or Cash
Equivalents, before the Lenders shall be entitled to receive any payment with
respect to any Guaranteed Obligations of such Guarantor and upon any such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of such Guarantor of any kind or character,
whether in cash, property or securities, to which the Lenders would be entitled
except for the provisions of this Section 3 shall be made by such Guarantor or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Guarantor Senior Debt of such Guarantor or their representatives to the extent
necessary to pay all of the Guarantor Senior Debt of such Guarantor to the
holders of such Guarantor Senior Debt.
(b) Subordination of Guaranteed Obligations on Default on Designated
Guarantor Senior Debt. Upon the maturity of any Designated Guarantor Senior Debt
of a Guarantor by lapse of time, acceleration or otherwise, all Designated
Guarantor Senior Debt of such Guarantor then due and payable shall first be paid
in full in cash or Cash Equivalents before any payment is made by such Guarantor
or any Person acting on behalf of such Guarantor with respect to the Guaranteed
Obligations. No direct or indirect payment by any Guarantor or any Person acting
on behalf of such Guarantor of any Guaranteed Obligations of such Guarantor
whether pursuant to the terms of the Loans or upon acceleration or otherwise
shall be made, if at the time of such payment, there exists a default (as
defined in the document governing any Designated Guarantor Senior Debt of such
Guarantor) in the payment of all or any portion of any Designated Guarantor
Senior Debt of such Guarantor and such default shall not have been cured or
waived or the benefits of this sentence waived by or on behalf of the holders of
such Designated Guarantor Senior Debt unless such Designated Guarantor Senior
Debt has been discharged or paid in full in cash or Cash Equivalents in
accordance with its terms. In addition, during the continuation of any other
event of default with respect to any Designated Guarantor Senior Debt pursuant
to which the maturity thereof may be accelerated, upon the receipt by Guaranteed
Party of written notice from the agent or representative of the holders of such
Designated Guarantor Senior Debt, no such payment may be made by such Guarantor
in respect of the Guaranteed Obligations for a period ("Guarantor Payment
Blockage Period") commencing on the date of receipt of such notice and ending on
the earlier to occur of (i) 179 days after receipt of such written notice by
Guaranteed Party (unless such Guarantor Payment Blockage Period shall be
terminated by written notice to Guaranteed Party from such agent or
representative) has elapsed, (ii) such default has been cured or waived or
ceased to exist or (iii) such Designated Guarantor Senior Debt has been
discharged or paid in full in cash or Cash Equivalents in accordance with its
terms. Notwithstanding anything herein to the contrary, (x) in no event will a
Guarantor Payment Blockage Period or successive Guarantor Payment Blockage
Periods with respect to the same payment on the Guaranteed Obligations extend
beyond 179 days from the date the payment on the Guaranteed Obligations was due
and (y) only one such Payment Blockage Period may be commenced within any 360
consecutive days. For all purposes of this subsection 3(b), no default which
existed or was continuing on the date of the commencement of any Guarantor
Payment Blockage Period with respect to the Designated Guarantor Senior Debt
initiating such Guarantor Payment Blockage Period shall be, or be made, the
basis for the commencement of a second Guarantor Payment Blockage Period by the
holders or by the agent or other representative of such Designated Guarantor
Senior Debt whether or not within a period of 365 consecutive days, unless such
event of default shall have been cured or waived for a period of not less than
90 consecutive days.
(c) Rights and Obligations of the Lenders. In the event that,
notwithstanding the foregoing provisions prohibiting such payment or
distribution, Guaranteed Party or any Lender shall have received any payment on
account of any Guaranteed Obligation (other than as permitted by Sections (a)
and (b) of this subsection 3.2) at a time when such payment is prohibited by
this subsection 3.2, then and in such event such payment or distribution shall
be received and held in trust for the holders of the Guarantor Senior Debt of
the relevant Guarantor and shall be paid over or delivered to the holders of the
Guarantor Senior Debt of the relevant Guarantor remaining unpaid to the extent
necessary to pay in full in cash or Cash Equivalents all Guarantor Senior Debt
of the relevant Guarantor in accordance with their terms after giving effect to
any concurrent payment or distribution to the holders of such Guarantor Senior
Debt.
Nothing contained in this Section 3 will limit the right of the Lenders to
take any action to accelerate the maturity of the Loans pursuant to Section 7 of
the Credit Agreement or to pursue any rights or remedies hereunder or otherwise.
Upon any payment or distribution of assets or securities referred to in
this Section 3, the Lenders and Guaranteed Party (notwithstanding any other
provision of this Guaranty or the Credit Agreement) shall be entitled to rely
upon any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Lenders or Guaranteed Party for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Guarantor
Senior Debt, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Section
3.
Guaranteed Party shall not at any time be charged with the knowledge of the
existence of any facts that would prohibit the making of any payment to or by
Guaranteed Party under this Section 3, unless and until Guaranteed Party shall
have received written notice thereof from a Guarantor or one or more holders of
the Guarantor Senior Debt of a Guarantor or a representative of any holders of
such Guarantor Senior Debt; and, prior to the receipt of any such written
notice, Guaranteed Party shall be entitled to assume conclusively that no such
facts exist. Guaranteed Party shall be entitled to rely on the delivery to it of
written notice by a Person representing itself to be a holder of Guarantor
Senior Debt (or a representative thereof) to establish that such notice has been
given.
The Guarantors shall give written notice to Guaranteed Party and each of
the Lenders of any default or event of default under any Guarantor Senior Debt
or under any agreement pursuant to which Guarantor Senior Debt may have been
issued, and, in the event of any such event of default, shall provide to
Guaranteed Party the names and address of the trustees or other representatives
of holders of such Guarantor Senior Debt.
With respect to the holders and owners of Guarantor Senior Debt, Guaranteed
Party and each Lender undertakes to perform only such obligations on the part of
Guaranteed Party or such Lenders, as the case may be, as are specifically set
forth in this Section 3, and no implied covenants or obligations with respect to
the holders or owners of Guarantor Senior Debt shall be read into this Agreement
against Guaranteed Party or the Lenders. Guaranteed Party and the Lenders shall
not be deemed to owe any fiduciary duty to the holders or owners of Guarantor
Senior Debt or to any agent under the Senior Secured Credit Agreement or any
other representative of the holders of Guarantor Senior Debt.
Guaranteed Party in its individual or any other capacity may hold
Indebtedness of a Guarantor (including Guarantor Senior Debt) with the same
rights it would have if it were not Guaranteed Party.
3.3 Payments May Be Paid Prior to Dissolution. Nothing contained in this
Section 3 or elsewhere in this Guaranty shall prevent or delay (i) Guarantors,
except under the conditions described in subsection 3.2, from making payments at
any time for the purpose of paying Guaranteed Obligations, or from depositing
with Guaranteed Party any moneys for such payments, or (ii) subject to
subsection 3.2, the application by Guaranteed Party of any moneys deposited with
it for the purpose of paying Guaranteed Obligations.
3.4 Rights of Holders of Guarantor Senior Debt Not To Be Impaired. No right
of any present or future holder of any Guarantor Senior Debt to enforce
subordination as provided in this Section 3 shall at any time in any way be
prejudiced or impaired by any act or failure to act by any such holder, or by
any noncompliance by the Guarantors with the terms and provisions and covenants
herein, regardless of any knowledge thereof any such holder may have or
otherwise be charged with. Without in any way limiting the generality of the
foregoing sentence, such holders of Guarantor Senior Debt may, at any time and
from time to time without impairing or releasing the subordination provided in
this Section 3 or the obligations of Guaranteed Party hereunder to the holders
of Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place, terms or time of payment of, or renew or alter, Guarantor Senior
Debt or otherwise amend or supplement in any manner Guarantor Senior Debt or any
instrument evidencing the same or any agreement under which any Guarantor Senior
Debt is outstanding; (ii) sell, exchange, release, or otherwise deal with any
property pledged, mortgaged, or otherwise securing Guarantor Senior Debt or fail
to perfect or delay in the perfection of the security interest in such property;
(iii) release any Person liable in any manner for the collection of Guarantor
Senior Debt; and (iv) exercise or refrain from exercising any rights against the
Guarantors and any other Person. Each Lender by purchasing or accepting a Loan
or a Note waives any and all notice of the creation, modification, renewal,
extension or accrual of any Guarantor Senior Debt and notice of or proof of
reliance by any holder or owner of Guarantor Senior Debt upon this Section 3 and
the Guarantor Senior Debt shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Section 3, and all dealings between
the Guarantors and the holders and owners of the Guarantor Senior Debt shall be
deemed to have been consummated in reliance upon this Section 3.
The provisions of this Section 3 are intended to be for the benefit of, and
shall be enforceable directly by, the holders of the Guarantor Senior Debt.
3.5 Subrogation. Upon the payment in full in accordance with the terms of
subsection 3.2 of all amounts payable under or in respect of the Guarantor
Senior Debt, the Lenders shall be subrogated to the rights of the holders of
such Guarantor Senior Debt to receive payments or distributions of assets of the
Guarantors made on such Guarantor Senior Debt until the Guaranteed obligations
shall be paid in full in cash or Cash Equivalents to the extent set forth
herein; and for purposes of such subrogation no payments or distributions to
holders of such Guarantor Senior Debt of any cash, property or securities to
which the Lenders would be entitled except for the provisions of this Section 3,
and no payment made pursuant to the provisions of this Section 3 to holders of
such Guarantor Senior Debt by the Lenders, shall, as between such Guarantor, its
creditors other than holders of such Guarantor Senior Debt and the Lenders, be
deemed to be a payment by such Guarantor to or on account of such Guarantor
Senior Debt, it being understood that the provisions of this Section 3 are
solely for the purpose of defining the relative rights of the holders of such
Guarantor Senior Debt, on the one hand, and the Lenders, on the other hand. A
release of any claim by any holder of Guarantor Senior Debt shall not limit the
Lenders' rights of subrogation under this subsection 3.5.
If any payment or distribution to which the Lenders would otherwise have
been entitled but for the provisions of this Section 3 shall have been applied,
pursuant to the provisions of this Section 3, to the payment of all amounts
payable under the Guarantor Senior Debt, then and in such case, the Lenders
shall be entitled to receive from the holders of such Guarantor Senior Debt at
the time outstanding the full amount of any payments or distributions received
by such holders of Guarantor Senior Debt in excess of the amount sufficient to
pay all Guarantor Senior Debt payable under or in respect of the Guarantor
Senior Debt in full in cash or Cash Equivalents in accordance with the terms of
subsection 3.2.
3.6 Obligations of the Guarantors Unconditional. Nothing contained in this
Section 3 or elsewhere in this Guaranty is intended to or shall impair as
between the Guarantors and the Lenders the obligations of the Guarantors, which
are absolute and unconditional, to pay to the Lenders the Guaranteed Obligations
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Lenders and
creditors of the Guarantors other than the holders of the Guarantor Senior Debt,
nor shall anything herein or therein prevent the Lenders from exercising all
remedies otherwise permitted by applicable law upon default under the Credit
Agreement, subject to the rights, if any, under this Section 3 of the holders of
such Guarantor Senior Debt in respect of cash, property or securities of the
Guarantors received upon the exercise of any such remedy.
The failure to make a payment on account of Guaranteed Obligations by
reason of any provision of this Section 3 shall not prevent the occurrence of a
Default or an Event of Default under Section 7 of the Credit Agreement.
3.7 Lenders Authorize Guaranteed Party To Effectuate Subordination. Each
Lender hereby authorizes and expressly directs Guaranteed Party on its behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Section 3 and appoints Guaranteed Party its
attorney in fact for such purpose, including, without limitation, in the event
of any dissolution, winding up, liquidation or reorganization of any Guarantor
(whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or any other
similar remedy or otherwise) tending towards liquidation of the business and
assets of any Guarantor, the immediate filing of a claim for the unpaid balance
of the Guaranteed Obligations in the form required in said proceedings and
causing said claim to be approved. If Guaranteed Party does not file a proper
claim or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the holders
of the Guarantor Senior Debt are hereby authorized to have the right to file and
are hereby authorized to file an appropriate claim for and on behalf of the
Lenders. In the event of any such proceeding, until the Guarantor Senior Debt is
paid in full in cash or Cash Equivalents, without the consent of the holders of
a majority in principal amount outstanding of Guarantor Senior Debt, no Lender
shall waive, settle or compromise any such claim or claims relating to the
Guaranteed Obligations that such Lender now or hereafter may have against the
Guarantors.
SECTION 4. MISCELLANEOUS
4.1 Survival of Warranties. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty and the
other Loan Documents and any increase in the Commitments under the Credit
Agreement.
4.2 Notices. Any communications between Guaranteed Party and any Guarantor
and any notices or requests provided herein to be given may be given by mailing
the same, postage prepaid, or by telex, facsimile transmission or cable to each
such party at its address set forth in the Credit Agreement, on the signature
pages hereof or to such other addresses as each such party may in writing
hereafter indicate. Any notice, request or demand to or upon Guaranteed Party or
any Guarantor shall not be effective until received.
4.3 Severability. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
4.4 Amendments and Waivers. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of Guaranteed Party and, in the case of any such amendment or
modification, each Guarantor against whom enforcement of such amendment or
modification is sought. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
4.5 Headings. Section and subsection headings in this Guaranty are included
herein for convenience of reference only and shall not constitute a part of this
Guaranty for any other purpose or be given any substantive effect.
4.6 Applicable Law; Rules of Construction. THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF GUARANTORS AND BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The
rules of construction set forth in subsection 1.3 of the Credit Agreement shall
be applicable to this Guaranty mutatis mutandis.
4.7 Successors and Assigns. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its respective successors and assigns.
This Guaranty shall inure to the benefit of Beneficiaries and their respective
successors and assigns. No Guarantor shall assign this Guaranty or any of the
rights or obligations of such Guarantor hereunder without the prior written
consent of all Lenders. Any Beneficiary may, without notice or consent, assign
its interest in this Guaranty in whole or in part. The terms and provisions of
this Guaranty shall inure to the benefit of any transferee or assignee of any
Loan, and in the event of such transfer or assignment the rights and privileges
herein conferred upon such Beneficiary shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof.
4.8 Consent to Jurisdiction and Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 4.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT;
(V) AGREES THAT BENEFICIARIES RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH GUARANTOR IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 3.8 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
4.9 Waiver of Trial by Jury. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE
BENEFITS HEREOF, EACH BENEFICIARY EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY. The scope of this waiver is intended to be all encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each
Guarantor and, by its acceptance of the benefits hereof, each Beneficiary, each
(i) acknowledges that this waiver is a material inducement for such Guarantor
and Beneficiaries to enter into a business relationship, that such Guarantor and
Beneficiaries have already relied on this waiver in entering into this Guaranty
or accepting the benefits thereof, as the case may be, and that each will
continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 4.9 AND EXECUTED
BY GUARANTIED PARTY AND EACH GUARANTOR), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
In the event of litigation, this Guaranty may be filed as a written consent to a
trial by the court.
4.10 No Other Writing. This writing is intended by Guarantors and
Beneficiaries as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect to
the matters covered hereby. No course of dealing, course of performance or trade
usage, and no parol evidence of any nature, shall be used to supplement or
modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
4.11 Further Assurances. At any time or from time to time, upon the request
of Guaranteed Party, Guarantors shall execute and deliver such further documents
and do such other acts and things as Guaranteed Party may reasonably request in
order to effect fully the purposes of this Guaranty.
4.12 Additional Guarantors. The initial Guarantors hereunder shall be such
of the Subsidiaries of Company as are signatories hereto on the date hereof.
From time to time subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Guarantors (each an "Additional
Guarantor"), by executing a counterpart of this Guaranty. Upon delivery of any
such counterpart to Administrative Agent, notice of which is hereby waived by
Guarantors, each such Additional Guarantor shall be a Guarantor and shall be as
fully a party hereto as if such Additional Guarantor were an original signatory
hereof. Each Guarantor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other
Guarantor hereunder, nor by any election of Administrative Agent not to cause
any Subsidiary of Company to become an Additional Guarantor hereunder. This
Guaranty shall be fully effective as to any Guarantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Guarantor hereunder.
4.13 Counterparts; Effectiveness. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by Guaranteed Party of written or telephonic
notification of such execution and authorization of delivery thereof.
4.14 Guaranteed Party as Agent.
(a) Guaranteed Party has been appointed to act as Guaranteed Party
hereunder by Lenders. Guaranteed Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action, solely in
accordance with this Guaranty and the Credit Agreement; provided that Guaranteed
Party shall exercise, or refrain from exercising, any remedies hereunder in
accordance with the instructions of Requisite Lenders.
(b) Guaranteed Party shall at all times be the same Person that is
Administrative Agent under the Credit Agreement. Written notice of resignation
by Administrative Agent pursuant to subsection 9.5 of the Credit Agreement shall
also constitute notice of resignation as Guaranteed Party under this Guaranty;
removal of Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute removal as Guaranteed Party under this Guaranty;
and appointment of a successor Administrative Agent pursuant to subsection 9.5
of the Credit Agreement shall also constitute appointment of a successor
Guaranteed Party under this Guaranty. Upon the acceptance of any appointment as
Administrative Agent under subsection 9.5 of the Credit Agreement by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Guaranteed Party under this Guaranty, and the
retiring or removed Guaranteed Party under this Guaranty shall promptly (i)
transfer to such successor Guaranteed Party all sums held hereunder, together
with all records and other documents necessary or appropriate in connection with
the performance of the duties of the successor Guaranteed Party under this
Guaranty, and (ii) take such other actions as may be necessary or appropriate in
connection with the assignment to such successor Guaranteed Party of the rights
created hereunder, whereupon such retiring or removed Guaranteed Party shall be
discharged from its duties and obligations under this Guaranty. After any
retiring or removed Guaranteed Party's resignation or removal hereunder as
Guaranteed Party, the provisions of this Guaranty shall inure to its benefit as
to any actions taken or omitted to be taken by it under this Guaranty while it
was Guaranteed Party hereunder.
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
MANAGED PRESCRIPTION NETWORK, INC.
VALUE HEALTH, INC.
IVTX, INC.
EXPRESS SCRIPTS VISION CORP.
ESI/VRX SALES DEVELOPMENT CO.
HEALTHCARE SERVICES, INC.
MHI, INC.
VALUERX, INC.
VALUERX PHARMACY PROGRAM, INC.
DIVERSIFIED PHARMACEUTICAL SERVICES,
INC.
By: /s/ Xxxxxx Xxx
Title: Senior Vice President and Chief
Financial Officer
IN WITNESS WHEREOF, the undersigned Additional Guarantor has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, ____.
(Name of Additional Guarantor)
By:
Title:
