SECOND AMENDED AND RESTATED GUARANTY
SECOND AMENDED AND RESTATED GUARANTY, dated as of December 23, 1998 (this
"Guaranty"), by XXXXXXXXX XXXXX HOLDING, INC., a Delaware corporation (the
"Guarantor") in favor of (a) BANKBOSTON, N.A., a national banking association as
agent (hereinafter, in such capacity, the "Agent") for itself and other lending
institutions (hereinafter, collectively, the "Banks") which are or may become
parties to a Second Amended and Restated Revolving Credit Agreement dated as of
December 23, 1998 (as amended and in effect from time to time, the "Credit
Agreement") among Xxxxxxxxx Xxxxx, Inc. (the "Borrower"), the Guarantor, the
Banks and the Agent and (b) each of the Banks.
WHEREAS, pursuant to that certain Amended and Restated Revolving Credit and
Term Loan Agreement dated as of December 5, 1997 (as amended and in effect from
time to time, the "First Restated Credit Agreement", which amended and restated
in its entirety the Revolving Credit and Term Loan Agreement dated as of
September 27, 1996), the Banks made loans or otherwise extended credit to the
Borrower for the purposes described therein;
WHEREAS, pursuant to that certain Amended and Restated Guaranty dated as of
December 5, 1997 (as amended and in effect from time to time, the "First
Restated Guaranty", which amended and restated in its entirety the Guaranty
dated as of September 27, 1996), the Guarantor guaranteed the Borrower's
obligations to the Banks under and with respect to the First Restated Credit
Agreement;
WHEREAS, the Guarantor, the Borrower, the Banks and the Agent have entered
into the Credit Agreement to amend and restate in its entirety the First
Restated Credit Agreement;
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Borrower under the Credit Agreement that the
Guarantor execute and deliver to the Agent, for the benefit of the Bank and the
Agent, a guaranty substantially in the form hereof; and
WHEREAS, the Guarantor wishes to amend and restate in its entirety the
First Restated Guaranty in order to ratify, confirm and continue its guaranty of
the payment and performance of all of the Obligations (as defined in the Credit
Agreement) pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent
that the First Restated Guaranty is hereby amended and restated in its entirety
as follows.
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1. DEFINITIONS. The term "Obligations" and all other capitalized terms used
herein without definition shall have the respective meanings provided therefor
in the Credit Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby guarantees to
the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required pre-payment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to Section
362(a) of the Federal Bankruptcy Code and the operation of Sections 502(b)
and 506(b) of the Federal Bankruptcy Code. This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of all of the Obligations and not of their collectibility only and
is in no way conditioned upon any requirement that the Agent or any Bank first
attempt to collect any of the Obligations from the Borrower or resort to any
collateral security or other means of obtaining payment. Should the Borrower
default in the payment or performance of any of the Obligations, the obligations
of the Guarantor hereunder with respect to such Obligations in default shall
become immediately due and payable to the Agent, for the benefit of the Banks,
without demand or notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by the Agent on
any number of occasions.
3. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. The Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and
reasonable legal expenses) incurred or expended by the Agent in connection with
the Obligations, this Guaranty and the enforcement thereof, together with
interest on amounts recoverable under this Section 3 from the time when such
amounts become due until payment, whether before or after judgment, at the rate
of interest for overdue principal set forth in the Credit Agreement, PROVIDED
that if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount.
4. WAIVERS BY GUARANTOR; AGENT'S FREEDOM TO ACT. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. To the fullest extent permitted by law,
the Guarantor waives promptness, diligences, presentment, demand, protest,
notice of acceptance, notice of any Obligations incurred and all other notices
of any kind, all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in effect, any right
to require the marshalling of assets of the Borrower or any other entity or
other person
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primarily or secondarily liable with respect to any of the Obligations, and all
suretyship defenses generally. Without limiting the generality of the foregoing,
the Guarantor agrees to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and agrees that the
obligations of the Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (i) the failure of the Agent or any
Bank to assert any claim or demand or to enforce any right or remedy against the
Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (iii) any change in
the time, place or manner of payment of any of the Obligations or any
rescissions, waivers, compromise, refinancing, consolidation, amendments or
modifications of any of the terms or provisions of the Credit Agreement, the
Notes, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any of the Obligations; (iv) the addition,
substitution or release of any entity or other person primarily or secondarily
liable for any Obligation, (v) the adequacy of any rights which the Agent or any
Bank may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (vi) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Agent or any Bank might have in such
collateral security or the substitution, exchange, surrender, release, loss or
destruction of any such collateral security; or (vii) to the fullest extent
permitted by law, any other act or omission which might in any manner or to any
extent vary the risk of the Guarantor or otherwise operate as a release or
discharge of the Guarantor, all of which may be done without notice to the
Guarantor. To the fullest extent permitted by law, the Guarantor hereby
expressly waives any and all rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law which would otherwise prevent the Agent or
any Bank from bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of set-off), against
the Guarantor before or after the Agent's or such Bank's commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by the Agent or any Bank.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER. If for any reason the
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by reason of such Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor to the same extent as if
the Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the
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Credit Agreement, the Notes, the other Loan Documents or any other agreement
evidencing, securing or otherwise executed in connection with any Obligation
shall be immediately due and payable by the Guarantor.
6. SUBROGATION; SUBORDINATION.
6.1. WAIVER OF RIGHTS AGAINST BORROWER. Until the final payment and
performance in full of all of the Obligations and any and all other
obligations of the Borrower to the Agent or any Bank or any affiliate of
the Agent or such Bank, the Guarantor shall not exercise any rights against
the Borrower arising as a result of payment by the Guarantor hereunder, by
way of subrogation, reimbursement, restitution, contribution or otherwise,
and will not prove any claim in competition with the Agent or any Bank or
such affiliate in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; the
Guarantor will not claim any setoff, recoupment or counterclaim against the
Borrower in respect of any liability of the Guarantor to the Borrower; and
the Guarantor waives any benefit of and any right to participate in any
collateral security which may be held by the Agent or any Bank or any such
affiliate.
6.2. SUBORDINATION. The payment of any amounts due with respect to any
indebtedness of the Borrower now or hereafter owed to the Guarantor is
hereby subordinated to the prior payment in full of all of the Obligations
and any and all other obligations of the Borrower to the Agent or any Bank
or any affiliate of the Agent or any Bank. The Guarantor agrees that, after
the occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, xxx for or otherwise attempt to
collect any such indebtedness of the Borrower to the Guarantor until all of
the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Guarantor shall collect, enforce or receive any
amounts in respect of such indebtedness, such amounts shall be collected,
enforced and received by the Guarantor as trustee for the Banks and the
Agent and be paid over to the Agent, for the benefit of the Banks, on
account of the Obligations without affecting in any manner the liability of
the Guarantor under the other provisions of this Guaranty.
6.3. PROVISIONS SUPPLEMENTAL. The provisions of this Section 6 shall
be supplemental to and not in derogation of any rights and remedies of the
Agent or any Bank or any affiliate of the Agent or any Bank under any
separate subordination agreement which the Agent or any Bank or such
affiliate may at any time and from time to time enter into with the
Guarantor.
7. SECURITY; SETOFF. The Guarantor grants to the Agent, for the benefit of
the Banks, as security for the full and punctual payment and
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performance of all of the Guarantor's obligations hereunder, a continuing lien
on and security interest in all securities or other property belonging to the
Guarantor now or hereafter held by the Banks and the Agent and in all deposits
(general or special, time or demand, provisional or final) and other sums
credited by or due from the Banks and the Agent to the Guarantor or subject to
withdrawal by the Guarantor. Regardless of the adequacy of any collateral
security or other means of obtaining payment of any of the Obligations, the
Agent is hereby authorized at any time and from time to time, when an Event of
Default has occurred and is continuing, without notice to the Guarantor (any
such notice being expressly waived by the Guarantor) and to the fullest extent
permitted by law, to set off and apply such deposits and other sums against the
obligations of the Guarantor under this Guaranty, whether or not the Agent shall
have made any demand under this Guaranty and although such obligations may be
contingent or unmatured.
8. FURTHER ASSURANCES. The Guarantor agrees to do all such things and
execute all such documents as the Agent may consider necessary or desirable to
give full effect to this Guaranty and to perfect and preserve the rights and
powers of the Banks and the Agent hereunder. The Guarantor acknowledges and
confirms that the Guarantor itself has established its own adequate means of
obtaining from the Borrower on a continuing basis all information desired by the
Guarantor concerning the financial condition of the Borrower and that the
Guarantor will look to the Borrower and not to the Agent or any Bank in order
for the Guarantor to keep adequately informed of changes in the Borrower'
financial condition.
9. REINSTATEMENT. After the termination of this Guaranty, this Guaranty
shall continue to be effective or be reinstated if at any time any payment made
or value received with respect to any Obligation is rescinded or must otherwise
be returned by the Agent or any Bank upon the insolvency, bankruptcy or
reorganization of any of the Borrower, or otherwise, all as though such payment
had not been made or value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of and be
enforceable by the Agent and the Banks and their successors, transferees and
assigns. Without limiting the generality of the foregoing sentence and except as
limited by the Credit Agreement, the Agent or any Bank may assign or otherwise
transfer the Credit Agreement, the Notes, the other Loan Documents or any other
agreement or note held by it evidencing, securing or otherwise executed in
connection with the Obligations, or sell participations in any interest therein,
to any other entity or other person, and such other entity or other person shall
thereupon become vested, to the extent set forth in the agreement evidencing
such assignment, transfer or participation, with all the rights in respect
thereof granted to the Agent or such Bank herein.
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11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent. No
failure on the part of the Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
12. NOTICES. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
by United States registered or certified first class, postage prepaid, or sent
by overnight courier, or if sent by telecopy or telefax, when such telecopy or
telefax is transmitted to the appropriate telecopy or telefax number and
telephonic confirmation of receipt thereof is obtained, addressed as follows: if
to the Guarantor, at the address set forth beneath its signature hereto, and if
to the Banks, at the address for notices to the Agent specified by reference in
Section 20 of the Credit Agreement, or at such address as either party may
designate in writing to the other.
13. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantor by mail at the address
specified by reference in Section 12. The Guarantor hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit was brought in an inconvenient court.
14. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (i) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or such Bank has
represented, expressly or otherwise, that the Agent or such Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Banks and
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the Agent are parties, the Banks and the Agent is relying upon, among other
things, the waivers and certifications contained in this Section 14.
15. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
16. TRANSITIONAL ARRANGEMENTS. This Guaranty shall supersede the First
Restated Guaranty in its entirety on and as of the Closing Date. On the Closing
Date, the rights and obligations of the parties under the First Restated
Guaranty shall be subsumed within and governed by this Guaranty; PROVIDED, that
the provisions of the First Restated Guaranty shall remain in full force and
effect prior to the Closing Date.
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IN WITNESS WHEREOF, the Guarantor has caused this Second Amended and
Restated Guaranty to be executed and delivered as of the date first above
written.
XXXXXXXXX XXXXX HOLDING, INC.
By: /s/ XXXXXX X. XXXXXX
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Title: CFO
Address:
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: 000-000-0000
